Constitutional Law Commons^™

Winking At Jubelirer’S Maneuvers, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Jubelirer’S Jubilee, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Constitutions Of Sustainable Capitalism And Beyond, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

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.

Shoot First, Talk Later: Blowing Holes In Freedom Of Speech, Jacqueline Tresl

Animal Law Review

Ms. Tresl examines the constitutionality of hunter harassment laws. When a five-step doctrinal analysis is applied to hunter harassment statutes, it is clear that the statutes are content-based and subject to the strictest of scrutiny. Because the statutes fail the strict scrutiny test, they therefore violate the American citizenry’s First Amendment right to free expression.

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.

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Faculty Publications

No abstract provided.

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Faculty Scholarship

No abstract provided.

Mr. Carroll’S Mental State Or What Is Meant By Intent, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Ten Lessons Our Constitutional Experience Can Teach Us About The Puzzle Of Animal Rights: The Work Of Steven M. Wise, Laurence H. Tribe

Animal Law Review

No abstract provided.

Too Young To Understand--Extending Equal Access To All Children In Public Schools Regardless Of Age, David Woodcock

St. Thomas Law Review

Finding the right mix of church and state is not an easy task for our society. This is especially true in our public schools. Everyday, millions of elementary school students meet after school in public school facilities to participate in Girl Scouts, Boy Scouts, Cub Scouts, Brownies, and 4-H Clubs. These organizations share the goals of preparing young boys and girls to grow into men and women of good morals and character. Religious organizations that share these goals, however, are denied access to school facilities simply because they have a religious point of view. School districts have told children that …

The Three Nixon Cases And Their Parallels In Malaysia, Myint Zan

St. Thomas Law Review

During the period from 1974 to 1982 the Supreme Court of the United States decided three cases in which the late Richard M. Nixon, the 37th President of the United States of America was involved as an appellant/ petitioner. All three cases decided by the United States Supreme Court bore the name of Richard Nixon in the title of the cases. This Article will attempt to discern some of the legal and constitutional issues which have arisen from these "Three Nixon" cases. Some of the issues in these cases would inevitably have arisen out of issues that are peculiar to …

Making Sense Out Of Nevada V. Hicks: A Reinterpretation, Alex Tallchief Skibine

St. Thomas Law Review

This article will first, summarize the law as it was before Hicks and second, focus on the various concurring opinions found in Hicks. Then, it will analyze the nature of the tribal right to exclude in an attempt to reconcile the results reached by the U.S. Supreme Court in terms of federalist principles. The article continues by arguing that Hicks can be conceived of as a special case requiring a clear statement from Congress before tribal jurisdiction can be judicially acknowledged. Finally, the article concludes by debating whether tribal powers, having been judicially divested, can be resuscitated through legislation, and …

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations and instead …

"A" Students Go To Court: Is Membership In The National Honor Society A Cognizable Legal Right?, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

The Constitutionality Of The Children's Internet Protection Act, Adam Horowitz

St. Thomas Law Review

Congress is presently considering the Children's Internet Protection Act ("CIPA"). CIPA requires schools and libraries that have computers with Internet access to certify to the Federal Communications Commission (FCC) that they (1) have selected a technology for such computers which filters or blocks access to child pornography and obscene material on the Internet; and (2) are enforcing a policy to ensure the operation of such technology during any use of such computers by minors Schools and libraries failing to submit a good-faith certification to the FCC within thirty days of the bill's enactment are ineligible to receive or retain the …

Supreme Court Federalism Decisions, Leon Friedman

Touro Law Review

No abstract provided.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Special Division Agonistes, John Q. Barrett

Faculty Publications

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of …

When Federal Law Is Also State Law: The Implications For State Constitutional Law Methodology Of Footnote 7 In Commonwealth V. Matos, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Separate Claim Removal Vs. Article Iii: Is Section 1441(C) Unconstitutional, Daniel R. Vega

St. Thomas Law Review

It is an axiomatic principle of law that federal courts are courts of limited jurisdiction. Hence, a congressional enactment that purports to grant the federal district courts subject matter jurisdiction over state law claims absent diversity of citizenship or supplemental jurisdiction should not survive an Article III case or controversy analysis. Inexplicably, however, the application of the present separate and independent claim removal statute does just that. It allows a federal district court to exercise jurisdiction over state law claims absent any federal jurisdictional justification. In United Mine Workers of America v. Gibbs,3 the Supreme Court of the United States …

Juvenile Curfew Challenges In The Federal Courts: A Constitutional Conundrum Over The (Less Than) Fundamental Rights Of Minors', Charles W. Gerdes

St. Thomas Law Review

The purpose of this Comment is to examine the inconsistency of analytical methodology that has been employed in the federal courts to determine whether the fundamental rights of minors are coextensive with those of adults in a given regulatory scheme. Specifically, the Comment focuses on this analysis in the context of juvenile curfew ordinance challenges. Further, the Comment proposes a substantive analytical methodology that implements the instruction of Supreme Court precedent in the realm of minors' constitutional rights. To achieve this purpose, the Comment necessarily investigates Supreme Court decisions analyzing the coextensive nature of a minor's fundamental rights. In some …

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

St. Thomas Law Review

This article reviews the historical context of controversial speakers on campus, examines various liberties and limitations accorded them under the Constitution, and suggests clear and effective standards for dealing with contentious speech in an academic setting.

Free Speech, Animal Law, And Food Activism, Howard F. Lyman

Animal Law Review

No abstract provided.

Independent Counsel Law Improvements For The Next Five Years, John Q. Barrett

Faculty Publications

This Article is adapted from remarks made in New Orleans on January 8, 1999, as part of an Association of American Law Schools (AALS) Administrative Law Section panel discussion entitled, "Separation of Powers Revisited: Should the Independent Counsel Law Be Renewed?" Our topic is "Should the Independent Counsel Law Be Renewed?" and my answer is, "Not exactly." I will not be, in other words, defending the status quo. Indeed, the empty chair you see here on the dais nicely contains the only "defender" of the status quo of whom I know. What I would like to do is remind us …

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …

The Leak And The Craft: A Hard Line Proposal To Stop Unaccountable Disclosures Of Law Enforcement Information, John Q. Barrett

Faculty Publications

The critics of Kenneth W. Starr accused him, in the five-plus years that he served as the multi-tasked Independent Counsel, of many failings, mistakes, and improprieties. One of the most prevalent charges was one that has significance to lawyers and resonates with the general public's sense of bad behavior by prosecutors: the allegation that Starr and/or members of his staff "leaked" information. This general accusation was, of course, imprecise. It also might have been overbroad. Prosecutorial "leaks" include such plain illegalities as disclosing grand jury information to the media or other unauthorized persons, and also the much less regulated practice …

Original Intent: Does The Double Jeopardy Clause Apply To Incarceration?, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals