Constitutional Law Commons^™

Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri Dk Basu V. State Of West Bengal, Sam F. Halabi

Faculty Publications

Under prevailing theories of comparative constitutional law, courts use foreign precedent in one of three ways: to identify “universal” principles of law applicable across jurisdictions; to sharpen understanding of domestic law through contrasting foreign judgments; and, in the case of legal systems with shared origins, to consider alternative jurisprudential paths. While the terminology differs, the concepts broadly hold across current theoretical treatments. Methodologically, these theories are built by analyzing certain foreign decisions, while scholars devote less effort in trying to test prevailing theories by applying theory to a court judgments outside those used to build their theories. In building a …

Minnesota Bounties On Dakota Men During The U.S.-Dakota War, Colette Routel

Faculty Scholarship

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove …

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …

Surviving Medical Device Preemption Under 21 U.S.C. 360k: Clarifying Pleading Standards For Parallel Claims Following Twombly And Iqbal., Ashley Abraham Williams

Student Works

No abstract provided.

Whose Pregnancy Is It Anyway? The Intrusion Of Abortion-Related Informed Consent Laws And Compelled Medical Treatment On The Doctor-Pregnant Patient Relationship, Jennifer Jascoll

Student Works

No abstract provided.

Circuit Confusion: The Growing Divide On Whether Gant Applies To Non-Vehicular Searches Incident To Arrest, Patrick D. Messmer

Student Works

No abstract provided.

“V.I.P” Videographer Intimidation Protection: How The Government Should Protect Citizens Who Videotape The Police, David Murphy

Student Works

No abstract provided.

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Faculty Scholarship

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

Due Process And The Future Of Class Actions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why …

Separation Of Church And State, Neutrality And Religious Freedom In American Constitutional Law, Robert A. Sedler

Law Faculty Research Publications

Religious freedom is a favored value under the United States Constitution. The Constitution provides two-fold protection to religious freedom by means of the Establishment Clause and the Free Exercise Clause. The Establishment Clause protects against the “establishment” of an official church by the government and against governmental action “establishing religion,” while the Free Exercise clause is a textual guarantee of peoples’ right to practice their religion and to hold and act on religious beliefs, free from governmental interference. The Establishment Clause would appear to an outside observer as strongly endorsing the concept of separation of church and state, and the …

Origins Of The Privileges And Immunities Of State Citizenship Under Article Iv, Stewart Jay

Loyola University Chicago Law Journal

The Privileges and Immunities Clause of Article IV provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” According to Alexander Hamilton, the clause was “the basis of the union,” which may seem odd given its minor significance in modern constitutional law. Part of the reason for its relative unimportance today is the development of constitutional doctrines unforeseeable in the eighteenth century: the invention of the Dormant Commerce Clause and the enactment of the Fourteenth Amendment, which prohibit much of the interstate discrimination that Article IV’s clause was intended to …

National Federation Of Independent Business V. Sebelius: Five Takes, Glenn H. Reynolds, Brannon P. Denning

UC Law Constitutional Quarterly

In National Federation of Independent Business v. Sebelius, the Supreme Court found that the Patient Protection and Affordable Care Act-popularly known as "Obamacare"-was an unconstitutional assertion of Congress' power to regulate commerce among the several states, but was nonetheless sustainable under Congress' power to tax. This piece looks at some possible meanings and implications of the Supreme Court's decision. Takes One and Two analogize Sebelius and two other famous cases-Marbury v. Madison and Regents of the University of California v. Bakke-whose opinions are held out as deftly straddling the line between principle and prudence. Takes Three and Four examine the …

Key Legal Issues For Schools: The Ultimate Resource For School Business Officials, Charles J. Russo

Educational Leadership Faculty Publications

School business officials (SBOs) must, in many respects, serve as all things to all people in their workplaces. Put another way, SBOs must be knowledgeable about a wide range of legal issues ranging from contracts to setting policy to state biding laws let alone constitutional matters involving the rights of students and teachers. Aware of the fact that issues involving the law are at the heart of many of a SBO’s duties, the chapters in this edited book have been written by a diverse array of individuals with experience as educational leaders in schools and/ or who possess significant expertise …

Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda

Journal Articles

Some types of hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech. This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out …

Interpreting Precise Constitutional Text: The Argument For A “New” Interpretation Of The Incompatibility Clause, The Removal & Disqualification Clause, And The Religious Test Clause—A Response To Professor Josh Chafetz’S Impeachment & Assassination, Seth Barrett Tillman

Cleveland State Law Review

In an article in another journal, Professor Josh Chafetz wrote: “[I]mpeachment maintains the link between removal and death, but attenuates it. . . . Impeachment is . . . a political death—a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning. But before doing so, I think it might be …

Constitutional Law - Due Process Clause - The Due Process Clause Of The Fifth Amendment Requires Fair Notice Of What Violates Federal Indecency Standards, Jon L. Mills

UF Law Faculty Publications

Casenote regarding Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012).

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

UF Law Faculty Publications

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a weapons or substance problem in their schools. Second, it provides normative considerations against implementing strict security measures in schools, especially when they are applied disproportionately on minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, it provides empirical findings that raise …

Medicaid Expansion, The Patient Protection And Affordable Care Act, And The Supreme Court's Flawed Spending Clause Coercion Reasoning In National Federation Of Independent Business V. Sebelius, L. Darnell Weeden

Cleveland State Law Review

The issue to be addressed is whether the Patient Protection and Affordable Care Act’s (ACA or “Obamacare”) manifest goal of promoting the general welfare of the nation by encouraging states to expand their existing Medicaid plans is a coercive use of Congress’ power under the Spending Clause if the federal government permanently picks up at least 90 percent of the cost of the expansion. The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” To make certain that federal money given to the States is used …

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

The United States Constitution as well as state procedural rules require prosecutorial authorities to disclose evidence to the defense as a means for ensuring fairness in the prosecution of individuals charged with criminal offenses. When prosecutorial authorities fail to disclose evidence as required, the integrity of the criminal justice system is threatened and the defense is unable to adequately prepare for trial. This threat is illustrated and magnified by the substantiation of prosecutorial misconduct claims in high profile trials where prosecutors have been unable to resist the temptation not to disclose evidence that could damage the prosecution's case, or, where …