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Articles 721 - 750 of 919
Full-Text Articles in Constitutional Law
Space, Place, And Speech: The Expressive Topography, Timothy Zick
Space, Place, And Speech: The Expressive Topography, Timothy Zick
Faculty Publications
No abstract provided.
In Pittsburgh, Freedom Abridged, Bruce Ledewitz
In Pittsburgh, Freedom Abridged, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.”
Make >Em Fess Up, Bruce Ledewitz
Make >Em Fess Up, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
The End Of American Democracy?, Bruce Ledewitz
The End Of American Democracy?, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Up Against The Wall Of Separation: The Question Of Religious Democracy, Bruce Ledewitz
Up Against The Wall Of Separation: The Question Of Religious Democracy, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
The Present And Future Of Federalism, Bruce Ledewitz
The Present And Future Of Federalism, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
The Rule Of Law And The Origins Of The Bill Of Attainder Clause, Jacob Reynolds
The Rule Of Law And The Origins Of The Bill Of Attainder Clause, Jacob Reynolds
St. Thomas Law Review
Until recently, modem bill of attainder analysis has been fairly simple for courts and litigators alike - in order to be considered a bill of attainder, a law must "(1) specify the affected persons; (2) impose punishment; and (3) lack a judicial trial." Furthermore, the case law defining the appropriate analysis in bill of attainder cases is minimal and simple to understand: as one recent appointee to the D.C. Circuit has aptly noted, "[t]he Supreme Court's approach to the bill of attainder clause has been developed in only a handful of decisions. It is surprising that such a historically non-controversial …
Ninety Miles From Freedom - The Constitutional Rights Of The Guantanamo Bay Detainees, Alan Tauber
Ninety Miles From Freedom - The Constitutional Rights Of The Guantanamo Bay Detainees, Alan Tauber
St. Thomas Law Review
This article concludes that, based on previous interpretations of the reach of the Constitution beyond U.S. borders, only the Fifth Amendment right to Due Process applies to Guantanamo Bay detainees, and that any other constitutional rights, such as the right to counsel or confrontation, must arise from the Due Process clause, rather than the independent rights protected by the Sixth Amendment. Part Two of this article will take an in-depth look at the decisions in Khalid and In re Guantanamo Detainee Cases, examining their reasoning and the similarities and differences in their conclusions. It will focus exclusively on the constitutional …
Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus
Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus
Scholarly Works
Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …
Caging Animal Advocates' Political Freedoms: The Unconstitutionality Of The Animal And Ecological Terrorism Act, Andrew N. Ireland Moore
Caging Animal Advocates' Political Freedoms: The Unconstitutionality Of The Animal And Ecological Terrorism Act, Andrew N. Ireland Moore
Animal Law Review
The animal advocacy movement is facing another obstacle, resulting from the creation of the Animal and Ecological Terrorism Act (AETA). The Act seeks to create harsh penalties including a Terrorist Registry for acts performed by the Animal Liberation Front (ALF) and ALF-type actors. In addition, the proposed legislation will affect animal advocates not involved with the ALF. However, the model legislation, as written, must pass Constitutional scrutiny. This paper argues that the proposed Animal and Ecological Terrorism Act is unconstitutional due to its infringement on the First Amendment, its overbreadth, and its vagueness.
Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami
Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami
Faculty Publications
The federal judicial branch has lately become the object of increasing scrutiny and distrust by its legislative counterpart. Congressional suspicion is often directed toward judicial discretion in criminal sentencing and, more generally, the degree to which judges are perceived to be beholden to a particular ideological point of view or personal bias. This distrust has bred a potent strain of political opportunism that Congress has manifested in several recent bills. One of these, the Feeney Amendment to the PROTECT Act, all but eliminated judicial discretion in sentencing and tacitly threatens judges' continued employment. Though the Supreme Court's recent decision in …
A Commander's Power, A Civilian's Reason: Justice Jackson's Korematsu Dissent, John Q. Barrett
A Commander's Power, A Civilian's Reason: Justice Jackson's Korematsu Dissent, John Q. Barrett
Faculty Publications
Robert Houghwout Jackson was a justice of the United States Supreme Court during the years of World War II. This article considers his great but potentially perplexing December 1944 dissent in Korematsu v. United States, in which he refused to join the Court majority that proclaimed the constitutionality of military orders excluding Japanese Americans from the West Coast of the United States during the War years. This article considers Justice Jackson's Korematsu dissent in full. It was and is, contrary to some of the criticisms it has received over the past 60 years, a coherent position. Jackson's dissent is also …
In Defense Of The Debt Limit Statute, Anita S. Krishnakumar
In Defense Of The Debt Limit Statute, Anita S. Krishnakumar
Faculty Publications
The debt limit statute is a critical feature of the federal budget process and prompts frequent legislation to increase the government's borrowing authority. In this Article, Professor Anita S. Krishnakumar examines the history of the debt limit statute as well as its function in the fiscal constitution. The Article deconstructs several popular criticisms of the debt limit statute, arguing that the criticisms exaggerate and that the statute in fact serves two important roles: first, the statute is the last remnant of congressional control and accountability over the national debt; second, it acts as an important institutional check on party and …
Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus
Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus
Faculty Scholarship
At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not "follow the flag" to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business …
The Bright Future Of Gay Marriage, Bruce Ledewitz
The Bright Future Of Gay Marriage, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
The Right To Trial By Jury In Environmental Cost-Recovery And Contribution Actions: United States V. England, Jonathan L. Mayes
The Right To Trial By Jury In Environmental Cost-Recovery And Contribution Actions: United States V. England, Jonathan L. Mayes
ExpressO
No abstract provided.
Justice Harlan’S Law And Democracy, Bruce Ledewitz
Justice Harlan’S Law And Democracy, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
A Constitution For Everyone, Bruce Ledewitz
A Constitution For Everyone, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
Symbolic Counter-Speech, Howard M. Wasserman
Symbolic Counter-Speech, Howard M. Wasserman
Faculty Publications
No abstract provided.
Proportionality Between Crimes, Offenses, And Punishments, James Headley
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 …
Dawn Raids Here At Home - The Danger Of Vanishing Privacy Expectations For Corporate Employees, Sarah Plotkin Paul
Dawn Raids Here At Home - The Danger Of Vanishing Privacy Expectations For Corporate Employees, Sarah Plotkin Paul
St. Thomas Law Review
This article posits that, due to the limited and diminishing privacy protections for corporate employees, Fourth Amendment jurisprudence is closer to permitting dawn raids in the workplace than popular opinion might suggest. First, the employee "standing" requirement to challenge an illegal search means employees must have a privacy interest in the particular workspace searched. In certain instances, then, individual employees have no way of protesting the use of illegally obtained corporate documents against them, including documents they have authored. Second, there may be few protections available to employees insofar as modem, widely-used workplace technologies are concerned, such as company computers …
Marshall V Madison: The Supreme Court And Original Intent, 1803-1835, Gordon Lloyd
Marshall V Madison: The Supreme Court And Original Intent, 1803-1835, Gordon Lloyd
School of Public Policy Working Papers
Should the justices of the Supreme Court rely on “original intent” as the foundation for constitutional interpretation? Or should they be free to interpret the Constitution in light of hermeneutical approaches created by current philosophies of law? This essay examines the Marshall Court to determine whether its opinions take their bearings from the American Founding or instead rely on a philosophy of jurisprudence that can be separated from the Founding. The purposes of this essay are fourfold: 1) to provide a comprehensive account of the use of the Framers by the Marshall Court, 2) address the normative question of the …
Corporate Advertising's Democracy, Bruce Ledewitz
Corporate Advertising's Democracy, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
The Promise Of Democracy, Bruce Ledewitz
The Promise Of Democracy, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
Unhappy Anniversary - Thirty Years Since Miller V. California: The Legacy Of The Supreme Court's Misjudgement On Obscenity, Daniel Mark Cohen
Unhappy Anniversary - Thirty Years Since Miller V. California: The Legacy Of The Supreme Court's Misjudgement On Obscenity, Daniel Mark Cohen
St. Thomas Law Review
If it is true, as Aristotle suggested, that man is by nature a political animal, the current state of American society demonstrates, to any who might doubt the proposition, that man is equally, if not more so, a sexual one. With successive blessings by the Supreme Court, and so, with legal and social impunity, the companion American realms of commerce and entertainment are now thoroughly suffused with images of an openly sexual nature and purpose. These images, generated with conscious calculation and without discrimination as to the age or interest of potential recipients, are employed primarily for pecuniary purpose-that is, …
Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca
Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca
Law Faculty Scholarly Articles
For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …
A Social Contract Between Students And The State: A Constitutional Analysis Of Florida Statutes Related To Mandatory Expulsion For Weapon Possession, Corporal Punishment And The Use Of Metal Detectors On Campus, Loula D. Giannet
St. Thomas Law Review
This article analyzes the constitutionality of various Florida statutes as they may be applied to curtail acts of violence on school grounds. Analyzed from a social contract theoretical perspective, the article first examines whether Florida's zero-tolerance policy regarding weapon possession in schools, which requires mandatory expulsion, comports with the Due Process Clause. Second, the article evaluates the relevant statutes pertaining to corporal punishment and the due process implications of this sanction. Third, the article explores the constitutional issues associated with the use of metal detectors on campus. Finally, the article briefly discusses whether the Double Jeopardy Clause precludes a subsequent …
The Law Of Obscenity - Or Absurdity, H. Franklin Robbins Jr., Steven G. Mason
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
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 …