Showing papers on "Substantive due process published in 1992"

The Bill of Rights and the Fourteenth Amendment

Abstract: I. ANTEBELLUM IDEAS ..................................... 1198 A. Barron .......................................... 1198 B. The Barron Contrarians...............................1203 1. The General WordinglExpressio Unius Theory ......... 1204 2. The Declaratory Theory ........................ 1205 C. The Contrarian Context .............................. 1212 1. Technology, Geography, and Ideology ............... 1212 2. Slavery .................................... 1215

Privacy as a Constitutional Right: Sex, Drugs, and the Right to Life

Abstract: Preface Introduction The Foundations of Constitutional Privacy The Historical Foundation: From Hittites to Puritans The Philosophical Foundation: From Natural Law to Natural Rights The Constitutional Foundation: From Natural Rights to Substantive Due Process The Common Law Foundation: Creating the Right to Privacy Constitutional Privacy Creating Constitutional Privacy Sex and Marriage Life and Death Mind and Body Beyond Constitutional Privacy Who Owns History? State Constitutional Privacy Conclusion Appendix Index

'Academic Challenge' Cases: Should Judicial Review Extend to Academic Evaluations of Students?

Abstract: This article provides a comprehensive inventory of academic challenge cases. It lists, describes, and summarizes reported American cases, classifying them not only by legal theory, but also by the type of fact situation they exemplify. Part I of the Article addresses the common law tradition of judicial deference to professors' and universities' academic decisions. It describes the origins of the principle that an implied contractual relationship exists between the student and the university, as well as the “counter-principle” that universities may dismiss students without justification.Part II of the Article will outline the impact on academic challenge jurisprudence by the due process revolution effected by Dixon v. Alabama State Board of Education and Goss v. Lopez, two cases that considerably expanded student due process rights in the disciplinary field. Part II also discusses the unsuccessful efforts to create a similar expansion in the academic challenge field, culminating in defeat for the student plaintiffs in Board of Curators of the University of Missouri v. Horowitz and Regents of the University of Michigan v. Ewing.Part III of the Article surveys recent academic challenge cases. The section is divided into the following major categories of cases: A) due process liberty and property interests; B) procedural due process claims; C) substantive due process claims; D) contract claims; and E) estoppel claims based on faculty representations. The Article concludes that, while the tradition of judicial deference to academic institutions in this area remains as strong as ever, courts in extreme cases have intervened and should and probably will continue to intervene to protect student rights in academia.

Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract

Abstract: The three decades spanning the years 1908 to 1937 saw a remarkable transformation of the Supreme Court's jurisprudence concerning the rights of workers to organize. In 1908, the Court held that a federal law prohibiting employers from discharging an employee because of his membership in a labor union violated the liberty of contract secured to the employer by the Fifth Amendment. In 1915, the Court similarly declared a state statute prohibiting the use of "yellow-dog" contracts unconstitutional. In 1937, by contrast, the Court upheld provisions of the Wagner Act prohibiting both discharges for union membership and the use of yellow-dog contracts. Thus, the doctrine of "liberty of contract" no longer operated as a bar to legislation protecting the rights of workers to organize for purposes of collective bargaining. The tale of the yellow-dog contract is naturally of interest because of its centrality to the development of American labor law and the decline of substantive due process. Beyond this, however, the story can be seen as a critical chapter in the development of American liberal legalism. The yellow-dog contract provoked something of a crisis in liberal discourse, because it brought into conflict two time-honored liberal values: liberty of contract and freedom of association. Recent scholarship has shown how "liberty of contract" was forged from such diverse liberal resources as Adam Smith's liberal political economy, Jacksonian liberalism, and the Northern "free labor" ideology that animated the abolitionist movement. Freedom of association enjoyed no less venerable liberal pedigree. Its protection against government infringement enshrined in the First Amendment, the freedom to affiliate with the lawful organizations of one's choice had been a widely embraced feature of American culture since well before the Civil War. Indeed, the passion of the American people for voluntary associations had attracted the fascination of Alexis de Tocqueville during his journey to the United States in the 1830s. The yellow-dog contract exposed a tension between these two values of American liberalism. Opponents of the yellow-dog contract contended that the employer was using his constitutionally protected liberty of contract as a means to inhibit his employee's freedom to associate with his fellow workingmen. In characteristically liberal terms, the answer to this charge would turn on whether the employee was seen as having surrendered his freedom of association voluntarily, or as a product of coercion. The answer to this question would in turn depend upon assumptions about the structure of the labor market, and these assumptions would change over time. Beneath this discourse, I believe, lay concerns about whether labor unions were properly analogized to the other sorts of voluntary associations celebrated by American liberalism. As those concerns became increasingly allayed over time, labor's advocates could more successfully appropriate the liberal rhetoric of associational freedom. Yet the story of the demise of the yellow dog contract cannot be adequately understood by looking at cultural context alone. In order to understand the voting patterns of the various Justices and the views they expressed in their opinions, one must pay close attention to the development of doctrine. A study of the doctrine pertaining to the yellow-dog contract reveals to us the difficulties with the notion that substantive due process and constitutional federalism were merely convenient weapons in the arsenal of a reactionary Court devoted to the maintenance of financial and industrial elites. Instead, we may see the weblike, interconnected structure of "laissez-faire constitutionalism." The doctrinal manifestations of Commerce Clause and due process jurisprudence were not simply free-floating rules that could be changed or abandoned without consequences extending beyond the particular doctrine involved. These areas of doctrine were developmentally intra- and interdependent. Modifications of one substantive due process doctrine entailed changes in another; developments in due process and Commerce Clause doctrine produced mutual, synergistic ramifications. In short, doctrinal commitments made by Justices in one area of doctrine entailed corresponding commitments in other doctrinal domains. In order to follow the trail of the yellow dog contract, we must trace these ripple effects across structurally related areas of doctrine.

"Academic Challenge" Cases: Should Judicial Review Extend to Academic Evaluations of Students?

Abstract: This article provides a comprehensive inventory of academic challenge cases. It lists, describes, and summarizes reported American cases, classifying them not only by legal theory, but also by the type of fact situation they exemplify. Part I of the Article addresses the common law tradition of judicial deference to professors' and universities' academic decisions. It describes the origins of the principle that an implied contractual relationship exists between the student and the university, as well as the “counter-principle” that universities may dismiss students without justification.Part II of the Article will outline the impact on academic challenge jurisprudence by the due process revolution effected by Dixon v. Alabama State Board of Education and Goss v. Lopez, two cases that considerably expanded student due process rights in the disciplinary field. Part II also discusses the unsuccessful efforts to create a similar expansion in the academic challenge field, culminating in defeat for the student plaintiffs in Board of Curators of the University of Missouri v. Horowitz and Regents of the University of Michigan v. Ewing.Part III of the Article surveys recent academic challenge cases. The section is divided into the following major categories of cases: A) due process liberty and property interests; B) procedural due process claims; C) substantive due process claims; D) contract claims; and E) estoppel claims based on faculty representations. The Article concludes that, while the tradition of judicial deference to academic institutions in this area remains as strong as ever, courts in extreme cases have intervened and should and probably will continue to intervene to protect student rights in academia.

Abortion rights as religious freedom

Abstract: Preface Introduction Roe v. Wade under Attack Individual Rights and Majority Rule Constitutional Interpretation Preview of Chapters 1. The Derivation of Roe v. Wade Economic Substantive Due Process Due Process and the Family Contraception and Privacy in Griswold v. Connecticut Contraception and Privacy in Eisenstadt v. Baird Blackmun's Privacy Rationale in Roe v. Wade Stewart's Due Process Rationale in Roe v. Wade Tribe on Substantive Due Process Conclusion 2. Potentiality and Viability The Roe v. Wade Decision The Concept of Viability in Abortion Cases Dividing the Gestational Continuum The Genetic Approach to Personhood Viability versus Similarity to Newborns Two Consequentialist Arguments Feminism and Viability Conclusion 3. The Evolution of "Religion" Religion in the Abortion Debate The Original Understanding of the Religion Clauses The Evolution of Religion Clause Doctrine Incorporation of the Religion Clauses From Belief to Practice Alleviating Indirect Burdens on Religious Practice Expanding the Meaning of "Religion" The Original Understanding View Bork: Conservative or Moderate? Conflicts between the Religion Clauses The Elusive Meaning of "Religion" Conclusion 4. The Definition of "Religion" The Adjectival Sense of Religion Religious Beliefs Independent of Organized Religions Religious Belief as Fundamental to Organized Religion Secular Beliefs Related to Material Reality Secular Beliefs Related to Social Interaction Secular Facts versus Secular Values The Court's Characterizations of Secular Beliefs Secular (Nonreligious) Belief The Epistemological Standard for Distinguishing Religious from Secular Belief Judicial Examples of Religious Beliefs General Characteristics of Religious Beliefs Summary 5. "Religion" in Court The Epistemological Standard Applied Cults and Crazies Secular Religions Tensions between the Religion Clauses The Unitary Definition of "Religion" 6. Fetal Personhood as Religious Belief Anti-Contraception Laws and the Establishment Clause Belief in the Existence of God Belief in the Personhood of Young Fetuses Distinguishing Religious from Secular Determinations of Fetal Personhood Religious versus Secular Uncertainty Environmental Preservation and Animal Protection versus Fetal Value Greenawalt's Argument The Reach of Secular Considerations Secular versus Religious Matters Conclusion 7. The Regulation of Abortion The Trimester Framework and Its Exceptions O'Connor's Objections to the Trimester Framework Superiority of the Establishment Clause Approach to the Trimester Framework Required Efforts to Save the Fetus The Neutrality Principle Appropriate Judicial Skepticism Undue Burdens and Unconstitutional Endorsements Conclusion 8. Abortion and Others Public Funding of Abortion The Establishment Clause Approach to Public Funding The Court's Funding Rationale The Court's Inconsistent Rationale Publicly Funded Family Planning Clinics Spousal Consent The Court's Flawed Parental Consent Rationale Information Requirements Spousal and Parental Consent The Establishment Clause Approach: Medical Dimension The Establishment Clause Approach: Religious Dimension Implications of the Establishment Clause Approach The Court's Inconsistency Equivalent Results Parental Notification Conclusion Conclusion Justice Scalia's View The Fundamental Flaw in Roe The Rationale for the Establishment Clause Approach Advantages of the Establishment Clause Approach Notes Glossary of Terms Annotated Table of Cases Bibliography Index

Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

Abstract: Preface Introduction: Judicial Review and Constitutional Development A Constitutional Right in Slavery Images of a New Union Constitutional Redefinition and National Reconstruction The Rise, Demise and Resurrection of Substantive Due Process Color and the Constitution Freedom of Speech: The "Indispensable" Liberty The Right to Be Let Alone

Casey and the resuscitation of Roe v. Wade.

Abstract: Casey v Planned Parenthood Association of Southeastern Pennsylvania 60 US 4795 (1992) is a great victory for procreative liberty The US Supreme Court reaffirmed the principe of Roe v Wade 410 US 113 (1973): a women has a right to terminate a pregnancy up until viability and thereafter when necessary to protect her life or health The decision allows the states to impose regulations insuring that abortion decisions are "thoughtful and informed" provided they do not impose an "undue burden" a change from Roe where early pregnancy regulations were permitted only when the state had a compelling interest In Casey the Courts perception of its legitimacy and its reliance on stare decisis left intact the substantive due process line of cases establishing the privacy interest related to marriage procreation contraception family relationships childbearing and education reaffirming its authority to define fundamental unenumerated rights through "reasoned judgment" in interpreting the liberty clause of the 14th Amendment Casey leaves the US with the most liberal system in the world but the issue is unnecessarily politicized because constitutionalizing the issue has removed almost all ability for compromise If the federal Freedom of Choice Act is defeated Casey may provide the vehicle for a compromise The affirmation of abortion presents the possibility that the manufacturer of the contragestive drug RU 486 will lift its self-imposed prohibition against marketing RU 486 in US Casey sympathetically describes the choice facing a pregnant woman and explicitly sees abortion as a quintessential issue of womens rights "Her suffering is too intimate and personal for the State to insist without more upon its own vision of the womans role however dominant that vision has been in the course of our history and our culture"