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Showing papers in "William and Mary Bill of Rights Journal in 2009"


Journal Article
TL;DR: In the context of the Department of Revenue of Kentucky v. Davis case, this paper proposed a new standard for the Supreme Court to adopt in its analysis of Dormant Commerce Clause challenges, including policy and constitutional reasons for adopting the standard.
Abstract: INTRODUCTION In one of the more controversial terms for the Supreme Court - adjudicating cases about sentencing guidelines,1 gun control laws,2 and the constitutionality of lethal injection3 - a small case out of a Kentucky appeals court will likely have the largest influence on our everyday lives. George and Catherine Davis, a couple from Kentucky, filed suit against the State for the disparate tax treatment of in-state and out-of-state municipal bonds, implicating the Dormant Commerce Clause.4 In a multitrillion-dollar market, any small movement has massive implications,5 but foundational changes have profound effects across the entire economy. With an economy concerned about economic stimulus packages, falling interest rates, collapsing financial institutions, and the subprime mortgage crisis,6 it is distressing to imagine the challenges the economy would face if the municipal bond market adjusted to the changing tax treatment. This Note will examine current Dormant Commerce Clause doctrine in the context of the Court's latest decision, Department of Revenue of Kentucky v. Davis. Through its decisions regarding the Dormant Commerce Clause, the Supreme Court has continually created more confusion and uncertainty. Beginning with distinctions such as whether the statute in question is economically protectionist and continuing to whether the benefits accrue to public or private entities, the current doctrine is a veritable chaotic collection of doctrine with little cohesion between decisions. This Note analyzes current Dormant Commerce Clause doctrine and proposes a new standard for deciding such challenges with more principle, precision, and predictability. Part I discusses the background to the principal case, including the statutory background in Davis and its pervasiveness throughout the country. Part ? reviews abrief history of municipal fundraising, including benefits, purposes, and expansion of the municipal bond market, to provide a context for the extent of the markets and the widespread effect of Davis. Part III scrutinizes current Dormant Commerce Clause doctrine, including the distinctions, categorizations, and exceptions - all of which haphazardly flood a muddied field of constitutional law. Part IV proposes a new standard for the Supreme Court to adopt in its analysis of Dormant Commerce Clause challenges, including policy and constitutional reasons for adopting the standard. Part IV also analyzes past precedent in light of the proposed standard, finding that much of the current doctrine fits into the strict scrutiny framework. Part V returns to the Davis case, considers lessons learned from past precedent under the new standard, and applies the new standard to the facts in Davis. This Note concludes that the best way to approach Dormant Commerce Clause cases is through adoption of strict scrutiny as a uniform standard. I. BACKGROUND TO DAVIS Municipal bond issues, aside from taxes, are a predominant method for states and localities to raise much-needed funds for local public works projects and other area requirements. With the advent of "triple tax exemption" from federal, state, and city taxes, municipal bonds are a $2.3 trillion market.7 The tax exemption provides incentive for residents to invest in municipal bonds and promote local projects.8 Their increasing prevalence to raise funds for local needs led to special tax treatment at both the federal and state levels.9 Kentucky Revised Statutes govern individual state income taxes on net income, which is determined after deductions from an individual's adjusted gross income.10 Kentucky's statute includes "interest income derived from obligations of sister states and political subdivisions thereof in its definition of adjusted gross income, but importantly, not interest income from obligations of Kentucky and its political subdivisions.11 The statute, in conjunction with the other definitions of adjusted gross income, effectively exempts in-state municipal bonds while taxing their out-of-state counterparts. …

5 citations


Journal Article
TL;DR: In this paper, the authors consider the potential impact of information overload on the capital jury and propose to limit the use of mitigating evidence to those that reflect on the individual culpability of the offender for the crime of conviction.
Abstract: Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, states must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, states must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is undeserving of death. The outcome has been that the penalty phase of the typical capital trial results in a flood of information from both prosecution and defense, much of it having little to do with the crime itself, through which the jury must wade. Whatever else may be said about our current death penalty jurisprudence, this flood of aggravating and mitigating evidence implicates the potential for information overload on the part of the capital jury. The concept of information overload-essentially, that too much information presented to a decision maker can result in sub-optimal decision making-has been widely explored in the marketing area. A few scholars have written on the potential impact of this phenomenon on consumer law and securities regulation. But until now, none has written on the potential impact of information overload on the capital jury. The sheer amount of information presented at the penalty phase of a capital trial likely exceeds many jurors' capacities to process that information. In addition, the novelty, complexity, ambiguity, and intensity of the decision to be made virtually assure that a significant number of capital jurors experience information overload. Jurors under such a constraint face two choices. First, they may "satisfice," or reach a decision that is sub-optimal simply to end the decision-making process. Second, they may "opt out," or abdicate their decision-making responsibilities to the other jurors. Neither result is acceptable in the capital context. In order to ease the potential effects of information overload, death penalty jurisdictions, with the approval of the Supreme Court, should reduce the amount of information presented at the penalty phase of capital trials. One logical way of doing this is to limit aggravating and mitigating circumstances at the penalty-selection stage to those that reflect on the individual culpability of the offender for the crime of conviction. This would mean doing away with victim impact evidence, evidence of future dangerousness, and all other non-culpability related aggravating evidence. This limitation would also require a loosening of the current strictures the Supreme Court currently places on the states' ability to limit the defendant's presentation of mitigating evidence. States should be permitted to limit the defendant's introduction of mitigating evidence to that which reflects on his culpability for the crime, broadly conceived, and the states should exercise that authority. I. OUR MODERN CAPITAL PUNISHMENT REGIME: MINIMIZING ARBITRARINESS WHILE ENHANCING INDIVIDUALIZED SENTENCING 1092 A. Minimizing Arbitrariness in Death Penalty Cases Through the Use of Aggravating Circumstances 1093 1. Aggravating Factors as Eligibility Factors 1095 2. Aggravating Factors as Selection Factors 1096 a. Weighing vs. Non-Weighing States 1096 b. Statutory and Non-Statutory Aggravating Factors ....... 1097 3. Two Common Types of Aggravating Evidence 1098 a. Evidence of Future Dangerousness 1098 b. Victim Impact Evidence 1099 4. The Growth in Aggravating Factors: The California Example . …

5 citations


Journal Article
TL;DR: For two semesters during law school, I worked as Bob Ellickson's research assistant and was asked what I might like to teach, and I replied, "I like Property".
Abstract: For two semesters during law school, I worked as Bob Ellickson's research assistant. One day, he asked me if I had considered the legal academy. I said yes, although I chose not to disclose why: my soon-to-be husband very much wanted to teach, and I figured that, if we ended up in some obscure town like South Bend, Indiana, I would probably need a job. He then asked what I might like to teach. "I like Property," I replied. He probably thought I was being obsequious - I would have thought as much - but he nevertheless assured me of his support if I ever did decide to test the academic waters. This exchange turned out to be a providential one. I realized as I left his office that, actually, the idea of teaching and writing about the law did appeal to me more than I had previously admitted to myself. And I realized that I was not being obsequious. I did like Property very much, thanks, of course, to Bob Ellickson, who all agree is an exceptionally gifted teacher. In his Property class, I had come to understand the problem of resource allocation as the problem in the law - the one problem that I would most want to ponder with students should the opportunity present itself someday. And so it was that three years later, when the appointments chair at Notre Dame Law School asked me what I would like to teach, I replied, "I like Property." And, as a law professor, I fmd myself trying to emulate Bob Ellickson as both a teacher and mentor. Of course, my intellectual pedigree is hardly unique. Undoubtedly, many law professors trace their scholarly interests back to their days in his Property class, and many more checked the "Property" box on the AALS form because they were inspired by his scholarship. Still, I am very grateful to Bob Ellickson for his encouragement, both in my law school days and many, many, times since I started teaching and writing about "his" subj ect. It is therefore a particular privilege to have been invited to this conference honoring his work as a scholar and a teacher. It is a special privilege to comment on the role of social norms as rules of property allocation. After all, Ellickson's work on this subject revolutionized not only the field of property law but legal scholarship generally. As Richard McAdams has observed, "Order Without Law created, or at least anticipated, a burgeoning new subfield of legal studies."1 Indeed, the subfield has so burgeoned that I am going to take the liberty of focusing on one sub-subfield of it - the role social norms play in the allocation of public space such as city streets, sidewalks, and parks. I choose this subsubfield for three related reasons. First, Bob Ellickson's 1996 article Controlling Chronic Misconduct in City Spaces is undoubtedly one of the most important scholarly treatments of the issue.2 Second, I have written about the question, in part because of his encouragement: he suggested that I consider writing about public-space allocation when I began teaching, and the suggestion coincided with my own interest in the topic.3 Third, city governments have become increasingly interested in enforcing norms of decorum in public spaces and, in so doing, allocating a scarce and critically important resource to those citizens who choose to play by the rules. My essay explores an important development arising out of the renewed focus in recent years on urban disorder: after several decades of relative inattention to rules of conduct in public spaces, city governments have become norm-entrepreneurs and norm-enforcers. This is, in once sense, nothing new. As Ellickson and others have shown, until the final decades of the last century, urban police officers maintained decorum in our public spaces primarily by enforcing informal norms of conduct.4 And even when official policies downplayed the enforcement of public-space rules of conduct, many police officers still found the role an impossible one to avoid.5 But modern order-maintenance policies differ in important respects from these antecedents. …

4 citations


Journal Article
TL;DR: The Thirteenth Amendment has been seen by courts as one brick in the wall of the institution of punishment as mentioned in this paper, and it has been argued that, properly read, the amendment should function instead as a breach in this wall, allowing some needed light to shine within.
Abstract: The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment-which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed "as a punishment for crime whereof the party shall have been duly convicted"1-has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead as a breach in this wall-one of sufficient size to allow some needed light to shine within. Although in some states inmates may still be sentenced to hard labor, in most systems today, they labor under a more general requirement that, if they are able-bodied, they must work. Reading the word "punishment" in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced-which is not the vast majority of inmates compelled to work in the present day-should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this Article also details the history of forced labor programs as punishment, and how courts' reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment or the ways that courts have construed it as a whole since that time. This Article argues that the reason courts have broadened the meaning of "punishment" in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials' actions. This Article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole. So this is the Chain Gang. Among ourselves it is most often referred to as The Hard Road, as a noun and as a proper name, capitalized and sacred. In the evening you can see us driving down the highway in a long caravan of black and yellow trucks heading back to Camp. And as we go by we get down on our knees in order to get a better view, our wicked, dirty faces peering through the bars to eyeball at your Free World.2 INTRODUCTION 397 I. THE DOCTRINE OF JUDICIAL DEFERENCE TO PRISON OFFICIALS AND ITS IMPLICATIONS 399 A. The Abdication of Judicial Responsibility, in Service of Punishment . 399 B. The Hard Road, and What Condemnation to it May Illuminate ..... 404 II. RE-EXAMINING THE THIRTEENTH AMENDMENT'S IMPLICATIONS FOR PRISON LABOR 409 A. The History of Forced Labor as Punishment 409 B. Forced Labor under the Thirteenth Amendment and Other Laws ... 417 III. USING TRADITION AND HISTORY AS A TOOL FOR INTERPRETING THE THIRTEENTH AMENDMENT 419 A. The Ratification of the Thirteenth Amendment 419 B. Early Understandings of the Thirteenth Amendment . …

4 citations


Journal Article
TL;DR: In this article, the controversy concerning my hiring as dean of the law school at the University of California, Irvine, and the University's handling of anti-Semitic speech on campus was discussed.
Abstract: Professor Kenneth L. Marcus's article in these pages, "Higher Education, Harassment, and First Amendment Opportunism,"1 simply ignores the most basic principle of free speech law: the government generally cannot punish speech based on content. Professor Marcus argues that the First Amendment should not be applied to hate speech on campus, especially anti-Semitic speech, and indeed dismisses concerns over freedom of expression as "First Amendment opportunism."2 But the regulation of speech on the campus of a public university, even hateful speech, is inherently a First Amendment issue. Although I strongly believe that Professor Marcus is wrong both descriptively as to what public universities may do and normatively as to what universities should do about hate speech, I would not have taken the time to write a response had I not been the focus of his introduction and conclusion. He describes the controversy concerning my hiring as dean of the law school at the University of California, Irvine, and juxtaposes this with the University's handling of anti-Semitic speech on campus.3 I am not sure why Professor Marcus chose to focus his attention on me and the University of California, Irvine, but to a large extent he has his facts wrong. He certainly is wrong as to many of the facts involving my hiring.4 But much worse, he is wrong in terms of what has occurred on campus at the University of California, Irvine. He repeatedly accepts the worst accusations as if they were truths and fans to describe much of what the campus administration has done to respond to hate speech and to create a hospitable environment for its students. From the moment that it was rumored in the press that I was a serious candidate to be the founding dean of its law school, I have been drawn into the controversy concerning hate speech on the University of California, Irvine, campus. Before I accepted the offer to be dean, I carefully investigated what had happened. As a Jew, I certainly did not want to spend the rest of my career in a place that is anti-Semitic or move my family to live in a hostile environment.5 What I learned is that almost without exception, the events on the University of California, Irvine, campus involved speech. This included speech critical of Israel and sometimes speech that was anti- Jewish. Some very offensive things were said. Professor Marcus omits that there often were equally hostile responses from Jewish students. But virtually every incident was speech. The Office for Civil Rights of the United States Department of Education did a thorough investigation and concluded that there was no basis for finding that there was a hostile or intimidating environment for Jewish students on campus at the University of California, Irvine.6 Its conclusion was that "there is insufficient evidence to support the complainant's allegation that the University failed to respond promptly and effectively to complaints by Jewish students that they were harassed and subjected to a hostile environment."7 After the Office for Civil Rights conducted its investigation, there was a request for the campus Hillel to conduct its own investigation. It declined, apparently because it did not perceive a problem on campus warranting any further action.8 A group of individuals with no connection to the University believed that there was a problem, appointed themselves as a task force, and conducted their own investigation.9 It found that there was a problem. 10 But again, virtually every incident in this report involved speech on campus.11 In response to this report, the student leaders of every major Jewish organization on campus issued an open letter declaring that they did not perceive anti-Semitism on campus and that they found the University of California, Irvine, a "safe and secure" place for Jewish students.12 Professor Marcus does not mention this.13 Nor does Professor Marcus mention the many efforts by the University's administration and officials to make Jewish students feel safe and welcome. …

4 citations


Journal Article
TL;DR: In this paper, the tax treatment of Islamic mortgage alternatives and the cultural and constitutional implications of such tax treatment were examined and the potential consequences of either permitting or denying a deduction for such payments were discussed.
Abstract: This Article examines the tax treatment of Islamic mortgage alternatives and considers the cultural and constitutional implications of the tax treatment of mortgage debt. Islamic law cannot be separated from the religion of Islam, and one of the primary tenets of Islamic law is the prohibition of riba, which is defined by some Islamic jurists as the payment of interest on any loan. Financing institutions, working with Muslim religious leaders, have developed a number of financing instruments that do not violate the prohibition against riba, thus facilitating home ownership for those Muslims who do not feel comfortable with a traditional mortgage. Should payments under such instruments qualify for the home mortgage interest deduction? What are the potential consequences of either permitting or denying a deduction for such payments? This Article discusses the constitutional implications of denying a tax deduction and administrative and regulatory options to accommodate tax deduction of payments under Muslim mortgage alternatives. Finally, this Article concludes that the issue of religious discrimination in the tax treatment of housing should be among the motivating factors for a statutory remodeling of the home mortgage interest deduction. INTRODUCTION 1 140 I. ECONOMIC IMPACT OF MUSLIM HOME OWNERSHIP 1 142 II. THE IMPORTANCE OF HOME OWNERSHIP IN LAW AND CULTURE ...... 1143 III. TAX BENEFITS FOR HOME OWNERSHIP 1145 IV. ISLAMIC HOME FINANCING ALTERNATIVES 1147 A. Murabaha 1148 B. Ijara 1149 C. Musharaka 1150 V. TAX FORM OR TAX SUBSTANCE? 1150 VI. CONSTITUTIONALITY OF TAX TREATMENT 1156 A. Public Policy 1158 B. Discrimination 1158 VII. SOLUTIONS 1160 A. Administrative Guidance 1160 B. The Statutory Solution: Remodeling the Home Mortgage Interest Deduction 1166 CONCLUSION 1168 INTRODUCTION Muslims that follow the interpretations of certain Islamic jurists believe that the payment or receipt of interest riba) is contrary to Islamic law.1 The prohibition on riba is found in Islamic law, shari'a.2 Shari'a is derived from the Qur'an, as interpreted by Muslim scholars.3 While some scholars interpret the Qur'an to mean that all interest is prohibited,4 others argue that restricting non-usurious interest results in unfairness, which is itself contrary to the Qur'an.5 While scholars debate, American Muslims want to buy homes. Like other Americans, they seek financing for the purchase. For non-Muslim Americans, obtaining financing for a home purchase is a relatively straightforward affair. They get a mortgage. Together with the mortgage, they get a gift from the U.S. government: the ability to deduct their mortgage interest payments from their taxable income.6 For Muslims who believe that paying interest compromises their religious beliefs, "noninterest" home purchasing financing options are available.7 However, these Muslim home buyers are on the horns of a dilemma: to comply with the tenets of their religion, they cannot pay interest. But to obtain a deduction from the U.S. government, their payments must be in the form of interest.8 While this issue may appear to be narrowly confined to the acquisition of homes by certain Muslim Americans, it raises broader concerns. Should the tax system be altered to provide additional fairness to those exercising their constitutional right to freely practice their religion? …

3 citations


Journal Article
TL;DR: The right of a people to alter or abolish their government was first articulated in the American Declaration of Independence as discussed by the authors, where the authors argued that if the government seeks to "enslave, or destroy" the people, the latter "have no other remedy in this... but to appeal to Heaven."
Abstract: "An Appeal to Heaven." - Slogan appended to several American navy schooners in 1775, as they prepared for battle against the British Empire.1 When the government seeks to "enslave, or destroy" the people, the latter "have no other remedy in this . . . but to appeal to Heaven." - John Locke, English philosopher (1691).2 INTRODUCTION The logic of democracy entails that people possess the right to alter or abolish their government. For Americans, this premise is more than philosophy; it is their history. And no document more famously articulated the rights of the people than did the Declaration of Independence. Read the key passage: "[W]henever any Form of Government becomes destructive of these ends [that is, the unalienable rights of life, liberty and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government . . . ."3 Here was presented the right of a people to destroy and create government as they saw fit. But the people depicted in the Declaration invoked something morally higher than themselves to justify the right: God. The Declaration explained: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . . ."4 Should government destroy these God-given rights, people may, with God's blessing, alter or abolish it.5 In articulating this view, the Declaration was not alone. The Committee of Correspondence, on behalf of aggrieved Bostoniane, drafted a document in 1 772 that protested British rule.6 Their complaints drew on the principle that "the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave."7 In a similar vein, the 1 776 Pennsylvania Constitution stated that government ought "to enable the individuals who compose it to enjoy their natural rights and the other blessings which the author of existence has bestowed upon man."8 Whenever government reneges on this pledge, "the people have a right, by common consent, to change it."9 The 1777 Vermont Constitution contained identical language.10 Connecticut's 1776 Constitution announced: "The People of this State, being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves . . . ."n Massachusetts' s 1780 Declaration of Rights acknowledged "with grateful hearts, the goodness of the Great Legislature of the Universe" for "His Providence" in affording the Americans an opportunity to abolish British rule and to create a new government of the people in "solemn compact with each other."12 This Article explores the religious origins of the right to alter or abolish government.13 I show in Part I that the right was widely accepted among the American colonies as expressed through their constitutions and, later, the Federal Constitution. In Part ?, I usher the reader back in time and across the Atlantic to seventeenth century England. There, I introduce two men who would have abhorred everything about American constitutional democracy - King James I and the faithful philosopher Sir Robert Filmer. Both men, prominent in their respective domains of authority, devoted themselves to the governing axiom that kings were bequeathed a right by God to absolute rule. Part DI sketches the seventeenth century arguments of two other Englishmen, also prominent - the philosophers John Locke and Algernon Sidney - who challenged James and Filmer. Locke and Sidney argued that God had never sanctioned the divine right of kings and instead had justified the people's right to overthrow tyrants. The arguments of Locke and Sidney, as I show in subsequent sections, influenced the American clergy who supported war against Britain and the right of revolution in general. Indeed, the development of this connection will occupy me for the remainder of the Article, but, in Part IV, I take a brief respite to summarize the historical circumstances that severely hampered governmental control over religion in colonial America and thus provided partially autonomous spaces for people to reflect on religion, including in ways that would inform their right to alter or abolish government. …

2 citations


Journal ArticleDOI
TL;DR: In the last several decades, reugious organizations have come to occupy an enviable legal stature in American society, leading one legal scholar to comment that "separation of church and state is no longer the law of the land" as discussed by the authors.
Abstract: INTRODUCTION In the last several decades, reUgious organizations have come to occupy an enviable legal stature in American society, leading one legal scholar to comment that "separation of church and state is no longer the law of the land."1 According to one analysis, religious organizations received over two hundred exemptions and other regulatory benefits in federal legislation over the last eighteen years, covering a wide array of areas such as pensions, immigration, and land use.2 One special break enacted to prevent religious discrimination in local zoning not only eliminated the discrimination, but also provided churches with the ability to discriminate against other landowners.3 Beginning with a policy shift in 1996 under President Bill Clinton and continuing under President George W. Bush's Faith Based Initiative, religious organizations' receipt of state and federal government grants and contracts has steadily increased.4 In addition to these more recently bestowed benefits, religious organizations, including churches, enjoy a longstanding exemption from federal income tax as "charitable organizations"5 and are a primary beneficiary ofthe charitable contributions deduction.6 In 2006, that deduction alone cost the federal government $40 billion in lost revenue and outweighed government expenditures on public lands' preservation, environmental protection, and new energy development.7 In addition to the above benefits, additional exemptions and benefits have been proposed in pending congressional legislation. One such bill, the Houses of Worship Free Speech Restoration Act of 2005, would amend the Internal Revenue Code (Code) to exempt churches and "other houses of worship"8 from the political campaign activity prohibition in § 501(c)(3).9 The Workplace Religious Freedom Act of 2005 would amend the Civil Rights Act of 196410 to require employers "to initiat[e] and engage] in an affirmative and bona fide effort, to reasonably accommodate" the religious practices of employees. Another congressional bill would amend the Higher Education Act to prevent educational accreditation boards from requiring private religious schools to comply with applicable state and local nondiscrimination laws.12 Most recently, religious organizations would be exempt from the prohibition on sexual orientation discrimination in the workplace under the Employment Non-Discrimination Act of 2007. 13 On the state and local levels, religious organizations also typically enjoy lucrative real property tax exemptions. 14 For example, in Colorado, religiously owned real property valued at more than $1 billion was exempt from local property taxes in 2006. 15 These exemptions are being extended as religious organizations expand their mission to encompass multimedia operations, biblical theme parks, retirement communities, child care facilities, fitness centers, bookstores, and coffee shops.16 Considering these expanded missions, the propriety of religious organizations' tax exemption is being questioned17 given that these organizations still depend on, and consume, the same public services as taxpaying citizens, effectively shifting the cost of providing those public services onto those citizens.18 The propriety of the extensive tax and other legal exemptions enjoyed by religious organizations must further be questioned when they maintain discriminatory policies or engage in discriminatory practices.19 Discrimination can be legally defined as "a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored."20 Based on that definition, religious organizations discriminate not only in the employment context, which is legally sanctioned in certain circumstances,21 but also in services or activities considered part of their religious mission, such as education.22 Many of the discriminatory acts and policies involve affiliated schools and universities that (I) terminated employees for questioning or violating church doctrine on sexual orientation or marital status, (ii) expelled students for their alleged or announced gay sexual orientation, or (iii) maintained employment and admissions standards that discriminated on the basis of sexual orientation or marital status. …

2 citations


Journal Article
TL;DR: In this article, the authors argue that the lower courts, by requiring that the right to remain silent be unambiguously asserted, have made it extremely difficult for suspects who wish to assert their rights to do so.
Abstract: If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.1 In 1966, the Supreme Court handed down one of its best-known decisions - Miranda v. Arizona.2 In that decision, the Court attempted to strike the appropriate balance between law enforcement interests in obtaining a confession and a suspect's Fifth Amendment right not to incriminate himself.3 The opinion decreed that this balance is preserved by "giving the defendant the power to exert some control over the course of the interrogation."4 Thus, the decision mandated that the suspect be informed prior to any custodial interrogation that he has the right to remain silent and the right to an attorney and that no interrogation can occur until the suspect waives these rights. Moreover, the suspect can assert these rights at any point during the interrogation and, if he does, questioning must immediately cease. Although these protections seem on first blush to effectively empower a suspect to choose whether to speak to the police, many have deemed Miranda a "spectacular failure."5 Although there are numerous critics of the Miranda decision and its progeny on a variety of levels,6 what has received too little attention is whether the most basic protection of the Miranda decision operates effectively. That is, can a suspect effectively assert the right to remain silent, and, perhaps as importantly, do the police appropriately respect such an assertion? This Article explores that question by considering what constitutes an assertion of the right to remain silent. Although Miranda suggested that "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease,"7 subsequent cases have required a more explicit invocation of the desire not to speak. Relying on Davis v. United States* a Supreme Court decision addressing the invocation of the right to counsel, the bulk of lower courts currently require that a suspect unambiguously invoke the right to remain silent.9 Such a transposition of the requirements for asserting the right to remain silent with the right to counsel is wrong as a matter of law, unwise as a matter of policy, and threatens to eviscerate the core protection of Miranda. This Article argues that the lower courts, by requiring that the right to remain silent be unambiguously asserted, have gone astray from what was intended in Miranda. The passage of time since Miranda and Davis has revealed one indisputable fact: rarely do suspects invoke their rights. Only twenty percent initially assert their rights rather than waive them; and almost no suspects assert their rights after a valid waiver.10 While some suspects undoubtedly waive their rights because they affirmatively want to talk to the police, this Article maintains that these statistics have a more nefarious explanation: court decisions have made it extremely difficult for suspects who wish to assert their rights to do so. Judges have gone to extraordinary lengths to classify even seemingly clear invocations as ambiguous invocations which can be ignored by the police. Once a suspect's attempted invocation is ignored, moreover, the chance that he subsequently will more clearly and forcefully assert his rights during the interrogation is substantially reduced. As a result, Miranda's promise that suspects freely determine whether and when they wish to submit to custodial interrogation is an empty one. In Part I of this Article, I explore the basic principles in Miranda and subsequent case law concerning the invocation ofthe right to remain silent and the right to counsel. Although no Supreme Court case after Miranda explicitly addressed the invocation of the right to remain silent, in Part II I describe how the lower courts have, with few exceptions, applied Davis to require that the right to remain silent can only be invoked by an unambiguous statement and that the police need not cease questioning nor pose clarifying questions in the face of an ambiguous invocation. …

2 citations


Journal Article
TL;DR: This article argued that prisoners working in these privately owned and operated facilities do indeed have a constitutional claim, given the history of the Thirteenth Amendment and the current state of private prison contracts, and that prisoners confined by the state to a privately owned facility must perform menial tasks for little to no pay.
Abstract: INTRODUCTION Prison overcrowding has evolved into a critical social problem. Per capita, the United States incarcerates more individuals than any industrialized nation in the world.1 In 2006, for example, the number of people "under supervision" in the nation's criminal justice systems topped 7.2 million.2 As a result, states spend billions of dollars to house, supervise, and counsel inmates.3 Adding to this problem, criminal law reform is slow and often nonexistent, and states have been forced to find other ways to remedy the burden that incarceration places on taxpayers and treasuries. Starting in the 1980s, one such remedy has been for states and localities to enter into contracts with private corrections construction and management firms.4 These companies are publicly traded and exist solely for the purpose of making profits from prison contracts with local, state, and federal authorities.5 In fact, Corrections Corporation of America (CCA), the oldest and most well-known private prison company, is listed on the New York Stock Exchange and recently reported nearly $ 1.5 billion in total revenue.6 CCA's success led to the creation of similar entities across the United States, taking the private prison industry from a one-man show to a billion dollar market in just two decades.7 To grasp the constitutional concerns presented by the private prison industry, one must first understand how it makes a profit. First, a state or locality, either by statute or decree, approves a new prison and solicits bids from private prison companies. Once a prison company secures a contract, it builds the type of correctional facility requested and operates it for the government. The latter task requires the prison company to hire personnel (e.g., prison guards, wardens, and psychologists) and provide the same services as a state-owned prison.8 Criminal justice scholars and legal professionals have generally commented on the benefits of privatization, stating that competition among firms results in better facilities for the inmates as well as lower costs to taxpayers.9 Private prisons also mimic their public counterparts in one interesting aspect: prison labor. As in state jail, prisoners confined by the state to a privately owned facility must perform menial tasks for little to no pay.10 The point of such work, consequently, is reformation and rehabilitation. By doing such work in the private context, however, prisoners directly contribute to the profit-making function of the corporation.11 At the very least, therefore, inmate labor in private prisons constitutes "involuntary servitude."12 If the state is characterized as "contracting out" inmates to these corporations who subsequently aid the prison in earning corporate revenue, the system begins to resemble a modern day form of slavery. The Thirteenth Amendment states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."13 Since its passage, the "Punishment Clause" has been a bane for prisoners who argue that they are being subjected to conditions resembling slavery or involuntary servitude. Finding support from the Slaughter-House Cases, u federal courts have held that the main purpose of the amendment was specific - to abolish African-American chattel slavery and its incidents. As such, the Punishment Clause renders any current prisoner' s argument that they are slaves or involuntary servants void and frivolous.15 In these cases, the Court either implicitly assumes or directly states that private prison inmates have no Thirteenth Amendment claim without further elaboration. This Note argues that, given the history of the Thirteenth Amendment and the current state of private prison contracts, inmates working in these privately owned and operated facilities do indeed have a constitutional claim. …

2 citations


Journal Article
TL;DR: In this paper, the authors focus on the scale at which activities and events unfold and argue that the institutions for managing property should be scaled to fit the relevant action, and that scale should factor into our normative evaluations of the societal impacts of various institutional and property arrangements.
Abstract: Bob Ellickson's work is so wide-ranging, thought-provoking, and important that doing it justice here is an impossibility - so I will admit defeat on that score at the outset. Instead, I want to focus on one recurring theme that runs through much of his scholarship and that has been especially important to my own thinking about property: that scale matters. Ellickson cashes out this idea in many rich and interesting ways, but I will use three broad propositions that emerge from his work as a way of organizing my remarks. First, that the scale at which activities and events unfold should drive choices among property arrangements. Second, that the institutions for managing property should be scaled to fit the relevant action. Third, that scale should factor into our normative evaluations of the societal impacts of various institutional and property arrangements. I. SCALING PROPERTY REGIMES Ellickson's 1993 article, Property in Land,1 is a masterful theoretical treatment of the problem of scale as it relates to property ownership arrangements. One of its central insights is that stmcturing access to property, through the positioning of boundaries or otherwise, is not a zero-sum game.2 Resource users can collectively achieve gains by appropriately configuring property arrangements - whether as individual owners working small parcels, households on somewhat larger tracts, small groups on tiny limited-access commons, or much larger groups sharing common fields.3 The trick is to scale land holdings so that the most valuable activities can be pursued most efficiently. Following Harold Demsetz, Ellickson explains that individuallyowned parcels do a good job of containing both the positive and negative impacts of "small events" such as the cultivation of tomato plants, and thus successfully align the parcel owner's incentives for such events.4 Individual parcel ownership also works comparatively well in addressing a "medium event" like building a dam across a stream, given the relative ease of bargaining with an affected neighbor or two, and the relative difficulty of getting a larger group to agree to anything.5 But Ellickson does not uncritically conclude that individual parcel ownership is always best. Instead, he considers how changes in returns to scale could alter the picture. Growing individual tomato plants may not require much land, but there are economies of scale for some land uses, such as grazing.6 Bigger parcels also economize on fencing,7 but introduce new governance challenges within the fence.8 Whether moving the fence outward is worth it depends in part on whether coordination across large areas will be required to use the land optimally - if so, then it may be easier to coordinate with co-owners inside an expanded fence than to strike bargains with a multiplicity of separate parcel holders.9 In making these tradeoffs, Ellickson explains, we want to know not only about economies of scale in production, but also about the prevalence of "large events" (he gives the example of a "smoky fire") that are likely to affect many parcels simultaneously.10 In Ellickson's recent work on the household, he shows that similar scale considerations emerge in choosing the number of people with whom to share a dwelling.11 There are economies of scale in sharing amenities like space, shelter, heat, and meals, but diseconomies with respect to privacy, control over one's environment, and pursuit of preferred activities.12 If the household is mostly about fostering intimate relationships and personal expression and less about efficiently producing and consuming heat and food, the choice will be made differently than if the priorities are flipped - and changes in social and economic conditions could alter the equation.13 A foundational challenge, of course, is that multiple activities with varying efficient scales are often pursued simultaneously or sequentially on particular property holdings.14 As Ellickson observes, there are a variety of strategies available to contend with this problem, none of them costless. …

Journal Article
TL;DR: In this paper, the authors present a case study of the use of the Ho odia plant in the traditional knowledge (TK) of the San people of southern Africa relating to medicinal uses of the plant.
Abstract: INTRODUCTION 832 I. THE SAN: WHO THEY ARE, WHERE THEY LIVE 836 II. THE SAN PREDICAMENT 848 III. HOODIA PLANTS: BOTANY, PHARMACEUTICAL CHEMISTRY, AND HERBAL USES 851 A. Botany 852 B. Pharmaceutical Chemistry 853 C. Herbal Medicine and Homeopathic Remedies 856 IV. TERRITORY AND LAND-USE RIGHTS 861 A. Rights of Possession and Use 863 B. Rights of Cultivation 875 C. Effect of International Law on Rights to Grow and Harvest ........ 880 V. LAND USE, TRADITIONAL KNOWLEDGE, AND INTELLECTUAL PROPERTY . 883 CONCLUSION 891 INTRODUCTION At present we see a great deal of writing by legal and other scholars on intellectual property (IP) rights in the traditional knowledge (TK)of indigenous peoples. The many articles and books on the subject are notable for their diverse approaches. Among them are legal analyses, philosophical discussions, historical, sociological and economic treatments, studies in political ideology and feminism and critical-race theory, and reports of field work.1 We believe that a good many of these approaches hold considerable intellectual and practical promise. It is no part of our study to claim that it merits pride of place over all other types of inquiry. We approach one highly noteworthy case of TK from the standpoint of domestic and international law. The case involves the TK of some of the San people of southern Africa relating to medicinal uses of the Ho odia plant. These San use the plant for many different ailments; we concentrate on its use as an appetite-suppressant and hence as a possible anti-obesity drug or herbal remedy. We argue that many factors make the financial rewards to the San of such a drug or remedy far less promising than might at first appear. Some of these factors, such as the dispossession of the San and their low socioeconomic status in the various countries of southern Africa, are not specifically legal but are vital to understanding the San predicament. Other factors, such as domestic law pertaining to land use as well as domestic and international patent law, are squarely legal. We write as legal observers and analysts of a complicated phenomenon. We try to be as even-handed as possible. We are neither activists for TK as a sui generis form of IP nor defenders of the status quo who are indifferent to the plight of the San. We do not share the opinions of either those who think that Hoodia is extraordinarily valuable or those who dismiss all talk of biopiracy.2 This Article began as a contribution by one of us to a conference honoring the work of Professor Margaret Jane Radin. A salient feature of her many articles is the range of her discussions of property - from land to servitudes to personal property and finally IP. This Article pays homage to this feature of her work by linking territory, land use, regional biodiversity, and JJP rights in the case of an indigenous people. We take note that our work appears in ajournai devoted to constitutional law, and specifically to the Bill of Rights in the United States. The four African nations - Angola, Botswana, Namibia, and the Republic of South Africa - that are central to our inquiry all have constitutions that shelter property rights in assorted ways.3 Because protecting property rights often helps to protect the liberty of property owners, we pay special attention to ways in which the liberty of action of the San people has been affected by a failure to protect property rights that they do or should have. …

Journal Article
TL;DR: This article argued that this asymmetry is not substantively neutral and that it permits the precise expressive harm that Establishment Clause doctrine claims to seek to prevent-that is, allowing religious dissidents to feel they are disfavored members of the political community and allowing the state to influence religious formation.
Abstract: Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court's commitment to the idea or an artifact of the positions of the "swing" Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It has required the government, in its superintendence of general and limited purpose public forums, to treat comparable religious and secular speakers identically. But the Court has continued to insist upon a substantial degree of secularity with respect to government speech. Some have argued that this is consistent with substantive neutrality as well. Government has but one voice and, while money and facilities can be made available in a way that respects individual choice, prayers and messages concerning religion cannot. Substantive neutrality, the argument continues, requires government silence on religious matters. The problem is that modern government is not-and probably cannot be-silent on such matters. In addition, current doctrine is ambitious. It seeks to prevent even very subtle injury to dissidents. As a consequence, it cannot protect religious objectors to secular speech with religious implication in the same way it seeks to protect even secular objectors from even the most bland of religious speech. I argue that this asymmetry is not substantively neutral. Drawing, in part, on the insights of post-liberal theology, I suggest that it permits the precise expressive harm that Establishment Clause doctrine claims to seek to prevent-that is, permits religious dissidents to feel they are disfavored members of the political community and allows the state to influence religious formation. Drawing on theories regarding the value of mediating institutions, including the Catholic notion of subsidiarity and the Calvinist idea of sphere sovereignty, I maintain that this asymmetry is undesirable and offer a less ambitious paradigm. Because we cannot protect the religious and secular from subtle expressive injury in the same way, we ought not to try. PRELUDE 2 INTRODUCTION 4 I. AN AMBITIOUS NEUTRALITY 8 A. The Roots of Neutrality 8 B. The Imperative of Neutrality 13 C. The Triumph of Substantive Neutrality 15 1 . Public Funding 15 2. "Private" Speech in Public Places 17 D. Government Speech: Substantive Neutrality Becomes Endorsement Neutrality 18 II. THE ASYMMETRICAL ESTABLISHMENT CLAUSE 22 A. The Ambition ofNonendorsement 22 B. The Asymmetrical Treatment of "Secular" Speech 24 1. Government Speech that Ignores Religious Perspectives ........ 25 2. Government Speech that Contradicts Religious Principles ....... 27 3. The Absence of a Remedy 28 a. Secular Speech as Interference with Free Exercise ......... 28 b. Secular Speech as Establishment 30 III. THE PROBLEM OF ASYMMETRY 36 A. Asymmetry Does Not Satisfy Substantive or Endorsement Neutrality . . 36 B. Asymmetry and Mediating Institutions . …

Journal Article
TL;DR: In the case of Georgia v Randolph, the problem with the decision was that the Chief Justice's dissent was the correct analysis of the Court's precedent, and the majority, in order to reach a desirable result in the case, circumvented existing doctrine and created a new standard by which Fourth Amendment reasonableness is to be measured as discussed by the authors.
Abstract: INTRODUCTION The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"1 Since 1974, the Supreme Court, utilizing the Fourth Amendment's reasonableness language, has interpreted the Fourth Amendment to allow third parties validly to consent to police searches that target another individual ' s privacy interest2 The Court's third-party consent search rulings essentially allow third parties to waive another person' s constitutional right against unreasonable searches3 The practical effect of these Fourth Amendment rulings is to diminish significantly an individual's right to privacy in his living quarters if that individual takes on a roommate4 or grants access to someone whom law enforcement officers reasonably could mistake as having authority to consent to a search5 The Supreme Court, in a unique moment of Fourth Amendment clairvoyance, attempted to return some abrogated Fourth Amendment protections when it decided Georgia v Randolph6 The problem with the decision, however, is that the Chief Justice's dissent was the correct analysis of the Court's precedent, and the majority, in order to reach a desirable result in the case, circumvented existing doctrine and created a new standard by which Fourth Amendment reasonableness is to be measured7 This new standard, "widely shared social expectations,"8 further confuses third-party consent doctrine and leaves room for widespread abuses of the Randolph decision and the Fourth Amendment9 In many respects, Randolph left third-party consent jurisprudence in worse shape than it was before the Court's decision, but the majority's validation of an individual's right against warrantless searches of the home seems to be the correct Fourth Amendment intuition Frankly, there is something inherently wrong with a warrantless police search of an individual's home when conducted in the face of an express objection by the individual against whom the search is conducted This type of police action pricks our sense of Fourth Amendment righteousness - and rightly so 10 Not having the votes necessary to reinvent third-party consent search doctrine, but willing to reinvigorate Fourth Amendment values, Justice Souter crafted a "fine line" opinion capable of jamming Randolph's, unique fact pattern into the existing doctrine without disturbing the current framework of third-party consent11 Alas, as all children learn at a young age, the square peg may be hammered through the round hole, but both the peg and the hole will get mangled in the process In this same manner, the Court jammed Randolph into the third-party consent framework and as a result both were mangled This Note uses Georgia v Randolph as a tool to show why third-party consent doctrine is broken and what can be done to repair it By tracing the evolution of current third-party consent doctrine, pointing out its flaws, and offering two different proposals that could reinforce our current notions of Fourth Amendment values, this Note attempts to offer a remedy for the doctrinal inconsistencies within third-party consent jurisprudence and vindicate the purpose of the Fourth Amendment Part I of this Note recites the current state of third-party consent jurisprudence and points out its inconsistencies and its practical limitations as a safeguard of Fourth Amendment rights against unreasonable searches Part II explains how third-party consent searches gained constitutional validity by examining three important Fourth Amendment doctrines enabling third-party consent Part ?? proposes that the Supreme Court should use Randolph as a springboard to reestablish some form of primary party "waiver" standard in third-party consent search jurisprudence in order to lend credibility and give efficacy to the Fourth Amendment's privacy protecting values The first proposal is to abolish third-party consent as a constitutional doctrine …

Journal Article
TL;DR: For example, the Due Process of Law (DPL) clause of the Fourteenth Amendment of the United States Constitution as mentioned in this paper protects the right of spouses to have children within marriage.
Abstract: INTRODUCTION "Marriage" is a term that appears in the most ordinary dictionary,1 but not in the Constitution or in the Bill of Rights.2 So, in contrast with the Constitution's treatment of "the freedom of speech," or the "[freedom] of the press,"3 no provision addresses or establishes "the freedom to marry," or "the right to have a family," or even the right "to have children within marriage." Indeed, for that matter, there are no provisions distinguishing any "rights" for those who do marry from any rights of those who do not. And since even the very word "marriage" does not appear in the Constitution, neither is it given any definitional boundaries constraining either Congress or the states.4 Even so, over the course of two centuries of judicial review, the Supreme Court has considered the status of marriage in many decisions testing the permissible scope of state and federal laws that deal with marriage.5 On the whole, moreover, at least until quite recently, these decisions have treated marriage as a special relationship perhaps more vital and more foundational within our constitutional culture than nearly any other.6 More than a century ago, for example, the Supreme Court described the centrality of marriage in society in the following way: "Upon [the institution of marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal."7 And so, quite naturally, the institution of marriage, and its regulation, have been recurring subjects of constitutional review. The principal sources of Supreme Court decisions strongly sheltering rights within marriage have been the "due process of law" clauses in the Constitution.8 The earlier of these identically-framed clauses appears in the Fifth Amendment of the Bill of Rights,9 but this clause is binding only on Congress and not on the states.10 The other, enacted in 1 868, appears in the Fourteenth Amendment and expressly does bind the states.11 Together, these clauses have been understood to limit the national government and the state governments from enacting highly intrusive laws infringing on private liberty within marriage.12 They have likewise been applied to provide for the equal protection of husbands and wives within marriage.13 For the greater part of the twentieth century, the pattern of judicial decisions of both kinds - the special protection of marriage and of equality of rights within marriage - tended to be of a common piece. Overall, they strongly sheltered marriage and the mutual interests of married persons in each other and in the new lives j oining them through their children, born ofthat union, conceived within that special union of mutual commitment to one another. A single case decided nearly ninety years ago, affords a suitable example to illustrate the point.14 Following World War I, several states enacted laws forbidding any language instruction other than English to be permitted in any school to any child prior to the eighth grade.15 Ostensibly, these laws were enacted to ensure that the children of first or second generation immigrant families would become fluent in English.16 Rather than taking care merely to insure adequate instruction in English to serve that end, however, these laws outlawing any non-English language classes, whether in private schools or in public schools, were far more sweeping.17 That is, they forbade any language instruction in any other language at all until a child was in the eighth grade regardless of the degree of English literacy a child might already have or, indeed, be able to demonstrate according to such tests, written or oral, as the state might require. The effect of these laws was particularly harsh on large numbers of immigrant families.18 They effectively deprived these families (and, indeed, many other families) of any lawful means whatever to enable their own children even to receive any instruction in any school of the language spoken by their parents at home. …

Journal Article
TL;DR: Hazleton, Pennsylvania as discussed by the authors was one of the first cities to use standing to challenge a local ordinance pertaining to the conduct of U.S. illegal immigrants, including an undocumented immigrant.
Abstract: INTRODUCTION John Doe 1 was a tenant in Hazleton, Pennsylvania, in September, 2006. ' Because he was not a United States citizen or permanent legal resident, he was confident the United States government could deport him at any time. But the city countil of the town he called home, and not the federal government, was the first to take action against him.2 Most are familiar with the actions of Hazleton' s city councu during the summer and fall of 2006. In response to a recent influx of undocumented immigrants, the councu passed a series of ordinances aimed at reducing the number of undocumented immigrants living within the city and thwarting the problems city leaders perceived as resulting from that influx.3 Ordinances prohibiting the employment of illegal immigrants, requiring apartment dwellers to prove legal status prior to renting, and prohibiting employers from translating documents into any language other than English were all part of the effort.4 John Doe 1, other illegal alien tenants, and a host of American citizens filed suit against the city of Hazleton.5 On July 26, 2007, the U.S. District Court for the Middle District of Pennsylvania acknowledged the standing of John Doe 1 and others to challenge these ordinances, granting relief in the form of a permanent injunction.6 In short, the plaintiffs, including an undocumented immigrant, were granted standing to challenge a local ordinance pertaining to the conduct of ulegal aliens.7 Halfway across the nation, in a perhaps less-publicized but no less important scenario, a group of American citizen-students, from states other than Kansas, challenged a Kansas statute pertaining to illegal aliens.8 The statute, passed on July 1, 2004, is one of several so-called state "DREAM Acts."9 The statute effectively allowed undocumented immigrants to pay in-state tuition rates while attending state universities in Kansas.10 The District Court of Kansas denied standing to those students in regard to some grounds for their action and held that no private right of action had been created for others. 1 1 On August 30, 2007, the Tenth Circuit Court of Appeals affirmed the district court's decision.12 In short, American citizens were denied standing to challenge a state statute governing the rights of illegal aliens.13 With the rising number of foreigners entering the United States ulegally, regulation of immigration is increasingly important. In 2004, an estimated 10.3 million unauthorized migrants, or illegal aliens, were present in this country.14 About eighty-six percent of that 10.3 million arrived in the United States sometime after 1990. 15 Calls for legislation restricting this movement have increased, citing a perceived strain on public resources, competition for jobs, diminished aesthetic appeal of communities, increased crime rates,16 and national security concerns.17 Not all of these perceptions, however, are supported by empirical data.18 Some even assert that racial animus is the true motivation behind this recent push for legislation.19 Regardless of what brought about the desire for regulation, Congress has provided no relief.20 In the wake of federal inaction, states and localities have attempted to fill the void with immigration regulation of their own,21 and their actions have been challenged in the courts. Courts have upheld some of these regulations - denying standing to those who brought the challenge22 - while striking down others on constitutional and federal preemption grounds.23 Important in those cases striking down state or local regulations is the discussion of constitutional standing to challenge.24 The purpose of this Note is to explore, paying particular attention to the courts' determination of standing, the effect of these decisions on the regulation of immigration. This discussion is not concerned with illegal immigrants' access to courts, but with standing in the context of immigration law. …

Journal Article
Ian C. Bartrum1
TL;DR: In this paper, the authors explore the ways that we use canonical texts when we make the kinds of constitutional arguments that Bobbitt has identified, and argue that the canon and the anti-canon serve the same metonymie function in our practice.
Abstract: It might be imagined that some propositions, of the form of empirical propositions, were hardened and functioned as channels for such empirical propositions as were not hardened but fluid; and that this relation altered with time, in that fluid propositions hardened, and hard ones became fluid. - Ludwig Wittgenstein1 In recent years, the constitutional canon has been a subject of growing interest and controversy among theorists as notable and diverse as Bruce Ackerman, Jack Balkin, Sanford Levinson, Philip Bobbitt, William Rich, Richard Primus, and Suzanna Sherry.2 The thought, crudely put, is that there are certain texts apart from the Constitution - some are directly derivative, others are not - which resound so powerfully in our constitutional ear that they have hardened, in incompletely defined ways, into part of the fundamental law itself.3 This idea, in all of its permutations, is profoundly important for constitutional lawyers, particularly as our constitutional culture continues to quake, erupt, and reform along unforeseen and unforeseeable technological and communicative fault lines. After all, it is largely through the ongoing construction and reconstruction of the canon - the reconfiguration of Wittgenstein's "fluid" and "hardened" propositions - that we accomplish modern constitutional reform; or something akin to the five-staged "constitutional moments" that Ackerman has so insightfully identified.4 And, as our discourse evolves to incorporate terms like "superprecedent"3 and "landmark statute,"6 it is critical that we continue to work towards a coherent theory ofthe canon and its function in constitutional practice. My admiration for Philip Bobbitt's modal theory ofthe Constitution - which posits six legitimate "modalities" of constitutional argument - is on record,7 and so it is perhaps unsurprising that I am drawn to his attempt at a modal catalogue of canonical texts.8 And although I conceive of this project as in keeping with Bobbitt's original Wittgensteinian insight,9 my approach to the relationship between the constitutional canon and the constitutional modalities is different than that which he has taken. While Bobbitt identifies particular canonical texts as exemplars ofthe different modalities of argument,10 my purpose here is to explore the ways that we use these texts to help make modal arguments and decisions within the practice of constitutional law. I thus take Bobbitt's opening insight - "[t]exts may speak, but they do not decide"1 1 - as the starting point of an account that sees many canonical texts employed as metonyms for larger constitutional principles or concepts. I borrow an idea from language theory, as does Bobbitt's modal account, because law, like language, is ^practice, an interactive communicative enterprise that legitimizes particular acts or utterances based on their usage and acceptance within a specific community and context.12 It is, in other words, impossible to say what McCuI loch v. Maryland,13 for example, "means" in absolute terms; rather, to understand that text's constitutional significance we must look to how it is used in the constitutional conversation. To this end, I hope that the concept of constitutional metonyms can help illuminate the ways that we both use and recreate the canon as we build constitutional arguments and make constitutional decisions. Accordingly, this paper does not attempt to justify a list of the most canonical texts in constitutional law, nor do I argue that we should treat certain cases or statutes as constitutional amendments accomplished outside of the Article V process. Rather, I explore the ways that we use canonical texts when we make the kinds of constitutional arguments that Bobbitt has identified. I have thus tried to choose texts that most lawyers would agree are either canonical or "anti-canonical" 14 - I contend here that the canon and the anti-canon serve the same metonymie function in our practice - in the hope that a few specific illustrations might provide a sufficient model from which to extrapolate the theory I propose. …

Journal Article
TL;DR: The first publication of Alternatives to Zoning as mentioned in this paper (1973) is the kind of first article that creates massive envy and inferiority complexes in beginning law teachers, and it was published as a junior law professor's student note in the Yale Law Journal.
Abstract: Bob Ellickson and I have been working the same regions of property scholarship for so long that he once described us as joined at the hip. Those who know us would probably say he kept his right hip and I kept my left one, but still, it is not a bad metaphor. Not only have we edited a property reader together, and not only did we teach together for many years at Yale Law School, but without knowing it, we grew up within a few miles of each other in the Washington area, and we almost went to the same college at the same time (Oberlin - Bob went there, and I almost did, but then I changed my mind and went to the somewhat wilder Antioch). Nevertheless, even for one joined at the hip, there is always more to learn about Bob's work, and so, in preparation for this conference, I did a review of his work. Now, anyone who knows Bob knows he has a stubborn streak, so I thought that the germs of all his future work would be there in his very first publication: his student note in the Yale Law Journal.1 Wrong. Or at least, partially wrong. The note reviewed four subsidized housing programs from the 1 960s.2 To be sure, it was about land and housing, andlow-income housing in particular, all constant topics inBob's later work.3 But with its larding of housing law jargon and statutory sections - "PHA" and "Sec. 221(d) (3)" and so on4- it was not at all the Bob Ellickson we now know. Quite the contrary, it was clearly an exercise in what Bob now calls "legal centralism," and he does not mean that as a compliment. I can only surmise that the baleful pressure of the Journal's editorial board crammed Bob's juvenilia into such an alien mold, because in his next and independent publication, we see the full-blown Ellicksonian take on the world. Alternatives to Zoning1 (1973) is the kind of first article that creates massive envy and inferiority complexes in beginning law teachers. Speaking for myself, I am certainly glad that I did not know for a number of years that it was Bob's first writing as a junior law professor. If I had known, I think I would have just thrown in the towel before I started. Quite aside from its classic status, Alternatives gives the reader a taste of the themes and characteristics that mark Bob's work throughout his career, right up to today. First, there is the use of homely examples to make highly sophisticated points about property. These show up again and again in his scholarship. In Alternatives, he uses the locations of grocery stores in the Santa Monica Mountains north of the Los Angeles basin to illustrate externalities, positive and negative.6 In Cities and Homeowners Associations1 (1 982), the homely example is Minot, North Dakota, which he uses to twit the more high-flying rhetoric of Critical Legal Studies authors.8 Most famous of all among the homely examples, of course, is that paragon of decentralized "order without law": Shasta County, California.9 Second, Alternatives showed Bob's abiding interest in interactions between and among property owners.10 How do people manage the overlapping features of their properties, those positive and negative externalities? How do they delineate their property rights so as to orchestrate their relationships among themselves? These issues would become the core of Bob's later property scholarship." Third, one sees inAlternatives Bob's skepticism about governmental intervention -specifically zoning.12 He argued then (and later) that this kind of governmental action is administratively costly; that it is ham-handedly overprotective against nuisances; that it is rife with special interest favoritism; and perhaps most important, that it often has a number of damaging third-party effects, particularly in reducing housing opportunities for families of modest means.13 Along with this skepticism about direct regulation, Alternatives showed another constant in Bob's work: a preference for legal structures that can promote private ordering. …

Journal Article
TL;DR: In a subsequent decision, the Court further diminished student speech rights when it held that the First Amendment did not prohibit a school from censoring a high school newspaper as mentioned in this paper, even if the same speech might be protected in other contexts.
Abstract: INTRODUCTION 657 I. BACKGROUND 661 A. Tinker v. Des Moines Independent Community School District ..... 66 1 B. Bethel School District No. 403 v. Fraser 663 C. Hazelwood School District v. Kuhlmeier 665 II. MORSE V. FREDERICK 669 A. Facts 669 B. Supreme Court's Analysis 670 C. The Concurring Opinions 672 D. Stevens 's Dissent 675 III. HIGH SCHOOL SPEECH RESTRICTIONS AFTER MORSE 676 IV. SPECIAL FORMS OF CONTENT-BASED RESTRICTIONS ON STUDENT SPEECH 681 A. Limited Public Forums and Student Clubs 681 B. School-Sponsored Speech and Curricular Concerns 686 C. Distribution Policies and Prior Restraints 693 V. CONTENT RESTRICTIONS ON ORDINARY STUDENT SPEECH: T-SHIRTS, B UTTONS, AND FLAGS 699 CONCLUSION 712 INTRODUCTION The constitutional analysis for free speech in public schools has long generated controversy and confusion. The Supreme Court's first entry into this area, Tinker v. Des Moines Independent Community School District, appeared to establish a speechprotective standard.1 In now famous language, the Court pronounced that "students and teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and held that a school could not prohibit students from wearing black armbands to school to protest the Vietnam War.2 Although the Court recognized that high schools are special environments for analyzing First Amendment rights, it stated that student speech was protected as long as it did not "materially and substantially interfere" with school operations.3 In two subsequent decisions, however, Bethel School District No. 403 v. Frase/ and Hazelwood School District v. Kuhlmeier,5 the Court appeared to cut back substantially on the seemingly broad scope of Tinker. In Fraser the Court held that schools could prohibit lewd speech within schools, even if the same speech might be protected in other contexts.6 Two years later, in Hazelwood, the Court further diminished student speech rights when it held that the First Amendment did not prohibit a school from censoring a high school newspaper.7 In doing so, the Court drew a sharp distinction between school toleration of student speech and school promotion of student speech. The Court said schools could exercise much greater control over the latter, which included production of a school newspaper, to avoid perceptions of the school's imprimatur behind the speech.8 Fraser and Hazelwood had two effects on constitutional analysis of student speech rights. First, as noted above, the decisions indicated that student speech rights were not nearly as broad as suggested by Tinker; in other words, students in fact shed many of their rights when entering the schoolhouse gate. The idea that student speech is limited by the special characteristics of schools, mentioned in Tinker, came to the forefront in these two decisions. Second, Fraser and Hazelwood created some confusion over how to analyze student speech rights, and in particular which case - Tinker, Fraser, or Hazelwood - should govern the typical high school speech case. Indeed, in the nearly two decades since Hazelwood, lower courts have decided a large number of cases involving free speech in high schools, often struggling with the proper standard of analysis.9 At first glance, the Supreme Court's decision last term in Morse v. …

Journal Article
TL;DR: The Coase Theorem has been used to explain not just the problems du jour but also a range of facts about life that we have tended to take for granted as mentioned in this paper, which is the mark of great work, and a great theory in particular, is that it seems obvious in retrospect.
Abstract: It is often said that the mark of great work, and a great theory in particular, is that it seems obvious in retrospect. And among such theories, some of the most impressive are those that aim to explain not just the problems du jour but also a range of facts about life that we have tended to take for granted. In law and economics, the Coase Theorem1 seems self-evident now, and the situations it covers positively homely, but at the time, against the backdrop of the idealizations and obsessions with frictionless worlds of mid-twentieth century economics, it was anything but obvious.2 Not only did it take a night's worth of partying in Chicago to make converts there,3 but refutations of the Coase Theorem sprouted up for quite a while afterwards.4 Bob Ellickson's work has this character in both respects. That social norms can be more important than - and can even override - contradictory law is now a staple of legal theorizing.5 And the hypothesis that close-knit communities will develop efficient norms for themselves - but not necessarily efficient for society overall - is leading to a better understanding of the dynamics of spontaneous order and its strengths and sometime weaknesses.6 This and his study of the workings of property itself,7 and now the household,8 are of clear utility in retrospect. But all of these aspects of Ellickson's work also share the second feature of a great theory: they explain aspects of life that were taken for granted - were not even on the scholarly radar screen - before Ellickson came along. Now Ellickson considers himself more of a social scientist than a philosopher, but this characteristic of his theorizing - the startling attention to something taken for granted - has characterized some of the greatest advances in philosophy and related fields. The one with which I am the most familiar, linguistics, was revolutionized starting in the 1950s when Noam Chomsky changed the goal of linguistics.9 Prior to the advent of his generative grammar, linguistics was usually conducted as an offshoot of traditional grammar. Grammar focused on categories, like cases, subjectobject word order, and many more subtle ones, that had been useful in describing Latin and related languages. These familiar categories were simply taken for granted, and details of these basic features were modified relative to Latin as an implicit baseline. Only when theorists took a step back and asked some very basic questions could linguistic theory hope to move beyond school-grammar and aim at a theory of human natural language competence in general. But the way to get there was to start noticing the deep puzzles in some of the homely facts staring at us under our noses.10 Likewise, a lot of very arcane analytic philosophy got its start when people started asking questions about how ordinary language works or why we have our basic moral intuitions.11 The starting point for great theories is often sitting right in front of - or within - us. What makes Ellickson's work so impressive and inspiring for my own work is exactly this character of putting the ordinary on the agenda in unexpected ways. Let me discuss three major examples, and then how this method calls for some qualification of another major theme of Ellickson's work - the irrelevance of law. First is Ellickson's work on social norms.12 In his study of Shasta County, Ellickson's field work went well beyond demonstrating that people did not know or care about law and that they worked things out among themselves in an efficient way. He showed first of all, in great detail, that people often preferred simple solutions over complex ones. Whether the prevailing legal regime was fencing in or fencing out, the fact that the prevailing norm was responsibility by animal owners for invasions of others' land suggests a powerful gravitational pull to the trespass model.13 Not in the sense of the somewhat complicated rules of animal trespass, but the basic regime of keep off, and out of, the column of space defined by the ad coelum rule. …