Constitutional Law Commons^™

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's …

Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne

Maine Law Review

The United States Supreme Court has struggled with the countervailing directives of the Free Exercise Clause and the Establishment Clause for decades. One area in which this battle has been particularly contentious is the issue of public funding of religious schools. On one hand, opponents argue that such funding is an impermissible co-mingling of church and state, thereby violating the Establishment Clause. Meanwhile, proponents of public funding of religious schools argue that, to withhold funding from religious schools would place a burden on those wishing to send their children to religious schools, thereby impermissibly preventing individuals from practicing their faith …

New Hampshire Motor Transport Association V. Rowe: Federal Preemption Of Maine's Attempt To Regulate Internet Sales Of Tobacco To Minors, Nathaniel D. Bryans

Maine Law Review

In New Hampshire Motor Transport Ass'n v. Rowe, trade associations sought a declaratory judgment that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts a Maine law enacted to facilitate collection of state taxes and restrict the delivery of tobacco products to minors (the Tobacco Delivery Law). The district court granted the plaintiffs' second motion for summary judgment in part, finding that a single provision of little independent consequence escaped preemption, and enjoined enforcement of the preempted provisions. The state appealed to the United States Court of Appeals for the First Circuit, which held that most of Maine's Tobacco …

Defining "Disability" Under The Maine Human Rights Act After Whitney V. Wal-Mart Stores, Inc., Michael J. Anderson

Maine Law Review

In Whitney v. Wal-Mart Stores, Inc., the Maine Supreme Judicial Court, sitting as the Law Court, was asked to determine whether the Maine Human Rights Act (MHRA) requires plaintiffs alleging disability discrimination to show that their condition substantially limits one or more major life activities. In determining that the MHRA does not require such a showing, the court effectively established that the MHRA was intended to protect a much broader range of medical conditions than its federal counterparts, the Rehabilitation Act of 1973 (Rehabilitation Act) and the Americans with Disabilities Act of 1990 (ADA). In so doing, the Whitney court …

Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn

Maine Law Review

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are …

The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean

Catholic University Law Review

Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in the military …

Protecting The Rights Of The Mentally Disabled In Administrative Proceedings, Robert T. Drapkin

The Catholic Lawyer

No abstract provided.

When Will The Law Catch Up With Technology? Jaycee B. V. Superior Court Of Orange County: An Urgent Cry For Legislation On Gestational Surrogacy, Laura A. Brill

The Catholic Lawyer

No abstract provided.

A Modest Proposal, William J. Mitchell

The Catholic Lawyer

No abstract provided.

Due Process: Constitutional Rights And The Stigma Of Sexual Abuse Allegations In Child Custody Proceedings, Colleen Mcmahon

The Catholic Lawyer

No abstract provided.

The Regulation Of Indecent Material Accessible To Children On The Internet, Joel Sanders

The Catholic Lawyer

No abstract provided.

Flint Of Outrage, Toni M. Massaro, Ellen Elizabeth Brooks

Notre Dame Law Review

Officials replaced safe water sources with contaminated water sources for tens of thousands of people living in Flint, Michigan, from April 2014 to October 2015. Overwhelming evidence indicates that the officials knew the water was potentially harmful to residents’ health and property. This unfathomable disregard for the residents of Flint sparked national outrage and prompted criminal charges as well as multiple civil suits.

Residents’ civil claims included two strands of substantive due process: that the actions infringed residents’ fundamental liberty rights to bodily integrity and to state protection from harmful acts by third parties, and that the government actions “shocked …

The Fragility Of Constitutional Democracy, Yasmin Dawood

Maryland Law Review

Is the survival of constitutional democracy in America at serious risk? Given the actions of the Trump administration, and given the decline of democracy and concomitant rise of authoritarianism the world over, there is genuine cause for alarm. In light of these fears, it is worth remembering that the authors of The Federalist Papers were notably pessimistic about the survival chances of republican government. To what extent have their constitutional design innovations contributed to present woes, and conversely, to what extent will the Constitution ensure the survival of democracy? This Essay argues that while the design of the Constitution is …

Terrorist Advocacy And Exceptional Circumstances, David S. Han

Fordham Law Review

This Article proceeds as follows. Part I discusses the harmful effects of terrorist advocacy and outlines the present doctrinal treatment of such speech. Part II discusses the issue of exceptional circumstances and highlights the two approaches courts might take to account for them: applying strict scrutiny to the case at hand or broadly reformulating the First Amendment’s doctrinal boundaries. Part III sets forth my central thesis: courts should adhere to case-by-case strict scrutiny analysis, rather than broad doctrinal reformulation, as the initial means of accounting for exceptional circumstances with respect to terrorist advocacy. This approach reflects the vital importance of …

Entertaining Satan: Why We Tolerate Terrorist Incitement, Andrew Koppelman

Fordham Law Review

Words are dangerous. That is why governments sometimes want to suppress speech. The law of free speech reflects a settled decision that, at the time that law was adopted, the dangers were worth tolerating. But people keep dreaming up nasty new things to do with speech. Recently, the Islamic State of Iraq and Syria (ISIS) and other terrorist organizations have employed a small army of Iagos on the internet to recruit new instruments of destruction. Some of what they have posted is protected speech under present First Amendment law. In response, scholars have suggested that there should be some new …

The Internet As Marketplace Of Madness— And A Terrorist’S Best Friend, Thane Rosenbaum

Fordham Law Review

The panel I was assigned to, for this distinguished gathering of scholars at Fordham Law School, where I had previously been a professor for twentythree years, was given the name, “Caution Against Overreaching.” Overreaching and the caution it occasions, in this case, refer to the First Amendment, a uniquely American absolutist, legalistic obsession. For many who fixate on such matters, the government must never be allowed to trample upon the unfettered free speech rights guaranteed under America’s first, and most favorite, Amendment.

How A Court Becomes Supreme: Defending The Constitution From Unconstitutional Amendments, Richard Albert

Maryland Law Review

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment restricting political speech or establishing a national religion—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy. In …

Fundamental Rights Not So Fundamental? Critique Of The Supreme Court Judgment In Law Association Of Zambia V. The Attorney General, Muna B. Ndulo, Samuel Ngure Ndungu

Southern African Journal of Policy and Development

The article discusses the constitutionality of sections 5 and 6 of the Public Order Act of Zambia. The Law Association of Zambia had unsuccessfully argued in the High Court of Zambia that the sections violated section 20 (Freedom of expression) and 21 (Freedom of assembly) of the Zambian Constitution. The Supreme Court of Zambia upheld the decision of the High Court and held that the sections did not violate sections 20 and 21 of the constitution and were constitutional. This article argues that the Supreme Court decision is wrong and falls short of effectively protecting citizen’s rights of peaceful assembly …

Constitutional Crisis And Constitutional Rot, Jack M. Balkin

Maryland Law Review

No abstract provided.

Alternatives To Liberal Constitutional Democracy, David S. Law

Maryland Law Review

The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.

Along these dimensions, the advantages …