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Showing papers on "Supreme Court Decisions published in 2000"


Journal ArticleDOI
TL;DR: The authors examined the effect of Supreme Court decisions in the local communities where the controversies began and found that a substantial number of residents heard about the Court's decision and subsequently changed their evaluation of the Supreme Court, especially those who live in the immediate community.
Abstract: people pay attention and use this information in their evaluation of the Court. The research is based on a series of two-wave panel studies that examine the effect of Supreme Court cases in the local communities where the controversies began. The results show that a substantial number of residents heard about the Court's decision and subsequently changed their evaluation of the Supreme Court, especially those who live in the immediate community. The results suggest that we need to consider other circumstances in which people hear about and care about Supreme Court decisions. R esearch on the relationship between specific Supreme Court decisions and public support for the Court has been frustrated by the apparent public ignorance of all but the most controversial and visible cases (see Caldeira 1991). In the standard account, citizens are portrayed as quite willing to offer an opinion about the institution, but they do so without knowledge of many individual decisions. Thus, many scholars conclude that support for the Court rests upon more enduring attitudes about the legitimacy of the Court in the system of government rather than on agreement or disagreement with specific decisions. Although most research suggests that the majority of Court decisions go unnoticed, the possibility that these decisions influence attitudes toward the institution is not without some support in the literature. The connection has been established in experimental research (Mondak 1991, 1992; Segal 1995) but has not been very well documented outside the laboratory. The reason is straightforward: If Court decisions are not common knowledge, by definition they can have no effect. One major obstacle is that most national surveys do a poor job of identifying conditions in which people are motivated to learn about specific Court decisions and in which they have sufficient access to information about them (but see Franklin and Kosaki 1995; Franklin, Kosaki, and Kritzer 1993; Hoekstra and Segal 1996). Consequently, we may be underestimating the importance of citizens' reactions as an element of support for the Court. One instance in which interest and access to information are likely to be high is the local communities where a controversy began. People should be more interested in cases that involve members of their own community than in cases that involve individuals or groups from somewhere else (Boninger, Berent, and

141 citations


Journal Article
TL;DR: The authors investigate the extent to which the American people subscribe to the myth of legality, the notion that the Supreme Court's decisions are based on legal principles rather than on political influences, and find that the myth holders are better educated, more attentive to the Court, and more favorable to the court as an institution, even when controlling for other determinants of public evaluation of the Court.
Abstract: Objective. We investigate the extent to which the American people subscribe to the myth of legality-the notion that the Supreme Court's decisions are based on legal principles rather than on political influences. Methods. Using survey research, we examine the mass public's perceptions of the bases for Supreme Court decisions. We identify those perceptions that are consistent with the myth of legality and isolate the myth holders. Finally, we embed myth holding into a broader model of public evaluation of the Supreme Court. Results. We find that the myth holders are better educated, more attentive to the Court, and more favorable to the Court as an institution, even when controlling for other determinants of public evaluation of the Court. Conclusions. The myth of legality is a viable component of American political culture that assists citizens in making sense of the Supreme Court's decision-making processes

87 citations


Book
01 Jul 2000
TL;DR: The Religion Clauses: Competing religious values The Uses of History Debating the Public Role of Religion: The Protagonists From Christian America to Free Exercise: The Changing Nature of the Church-State Debate The Future of theChurchState Debate Appendix: Selected Supreme Court Decisions Glossary References Index as discussed by the authors
Abstract: The Religion Clauses: Competing Religious Values The Uses of History Debating the Public Role of Religion: The Protagonists From Christian America to Free Exercise: The Changing Nature of the Church-State Debate The Future of the Church-State Debate Appendix: Selected Supreme Court Decisions Glossary References Index

34 citations



Book
01 Nov 2000
TL;DR: In this paper, the authors present a legal framework of public education, including tort liability, and a summary of legal generalizations glossary of selected Supreme Court Decisions on student expression, association, and appearance.
Abstract: BRIEF TABLE OF CONTENTS 1 Legal Framework of Public Education 2 Tort Liability 3 Church/State Relations 4 Instructional Issues 5 Student Expression, Association, and Appearance 6 Student Classifications 7 Rights of Students with Disabilities 8 Student Discipline 9 Terms and Conditions of Employment 10 Teachers' Substantive Constitutional Rights 11 Discrimination in Employment 12 Termination of Employment 13 Summary of Legal Generalizations Glossary Selected Supreme Court Decisions

25 citations


Book
01 Jan 2000
TL;DR: The Law of Affirmative Action as discussed by the authors provides a comprehensive chronicle of the evolution of the Supreme Court's involvement with the racial affirmative action issue over the last quarter century, starting with the 1974 DeFunis v. Odegaard decision and the 1978 Bakke decision, which marked the beginnings of the Court's entanglement with affirmative action.
Abstract: The debate over race in this country has of late converged on the contentious issue of affirmative action. Although the Supreme Court once supported the concept of racial affirmative action, in recent years a majority of the Court has consistently opposed various affirmative action programs. The Law of Affirmative Action provides a comprehensive chronicle of the evolution of the Supreme Court's involvement with the racial affirmative action issue over the last quarter century. Starting with the 1974 DeFunis v. Odegaard decision and the 1978 Bakke decision, which marked the beginnings of the Court's entanglement with affirmative action, Girardeau Spann examines every major Supreme Court affirmative action decision, showing how the controversy the Court initially left unresolved in DeFunis has persisted through the Court's 1998-99 term. Including nearly thirty principal cases, covering equal protection, voting rights, Title VII, and education, The Law of Affirmative Action is the only work to treat the Court decisions on racial affirmative action so closely, tracing the votes of each justice who has participated in the decisions. Indispensable for students and scholars, this timely volume elucidates reasons for the 180 degree turn in opinion on an issue so central to the debate on race in America today.

25 citations


Journal ArticleDOI
TL;DR: In this paper, the authors examine the history of political dissent in America, from World War I through the McCarthy era and beyond, in the context of the larger political culture of the times.
Abstract: In 1951, at the height of the Red Scare, Justice Hugo Black predicted that the Supreme Court would one day change its view on the balance between the need to ensure domestic security against subversive influences and an obligation to preserve First Amendment principles. Justice Black predicted that "in calmer times" the Court would favor protecting the rights of political dissenters. He was right: six years later, FBI director J. Edgar Hoover named June 17, 1957, "Red Monday" for the four Supreme Court decisions announced that day, meaning that the "Reds" had won. Arthur J. Sabin investigates the decisions after 1955 in which the U.S. Supreme Court repudiated its earlier endorsement of the political prosecutions that had engulfed the nation after World War II. Those prosecutions had sent hundreds to jail, reflecting a widespread belief that the nation was in serious danger of internal subversion and revolution. He does so in the context of the larger political culture of the times-and also in the context of the history of political dissent in America, from World War I through the McCarthy era and beyond.

17 citations


MonographDOI
TL;DR: A masterly introduction to the United States Constitution can be found in this article, which leads the reader through a concise overview of the document's individual articles and amendments, and explains the relation between the federal and state governments.
Abstract: A masterly introduction to the United States Constitution, this slim book leads the reader through a concise overview of the document's individual articles and amendments. With clear and accessible language, Currie then examines each of the three branches of the federal government and explains the relation between the federal and state governments. He analyzes those constitutional provisions that are designed to protect citizens from governmental interference, such as the due process and equal protection clauses and the confusing first amendment provisions respecting the separation of church and state, and includes discussions of judicial review and freedom of speech and of the press. A sympathetic yet critical guide, Currie's book enables students and laypersons to understand one of the cornerstones of the Western political tradition. The second edition, along with an updated chronology and bibliography, incorporates the Supreme Court decisions over the past decade that have affected constitutional interpretation. "Superb . . . highly recommended for those seeking a reliable, understandable, and useful introduction to our constitution." "Appellate Practice Journal and Update""

11 citations


Journal ArticleDOI
TL;DR: Krieger as discussed by the authors framed an interdisciplinary symposium on public, judicial, and media responses to the Americans with Disabilities Act (ADA) and proposed a theoretical model of socio-legal change and retrenchment, situates the concept of backlash within that model, and applies the model to investigate and explain patterns of public and judicial and media reactions to the ADA.
Abstract: Over the past three years, an increasing number of disability rights activists, practitioners, and scholarly commentators have claimed that a powerful judicial and media backlash against the Americans with Disabilities Act is underway. Even before issuance of three Supreme Court decisions in the Summer of 1999 narrowly construing the Act's coverage, there existed ample evidence supporting the backlash hypothesis. In two papers, a Foreword and an Afterword, Professor Krieger frames an interdisciplinary symposium on public, judicial, and media responses to the Americans with Disabilities Act soon to appear in the Berkeley Journal of Employment and Labor Law. In the first article, Backlash Against the Americans with Disabilities Act: Interdisciplinary Perspectives and Implications for Social Justice Strategies, Professor Krieger situates the intellectual project undertaken by the Symposium and introduces the fourteen articles and three responsive commentaries that comprise it. In the second paper, Socio-Legal Backlash, Professor Krieger posits a theoretical model of socio-legal change and retrenchment, situates the concept of backlash within that model, and applies the model to investigate and explain patterns of public, judicial and media reactions to the ADA.

10 citations


Journal ArticleDOI
TL;DR: In this paper, an equal protection challenge claiming that SVPs are similarly situated with other civilly committed patients is likely to fail, but a properly framed equal protection claim could, and should succeed.
Abstract: In Kansas v. Hendricks, 521 U.S. 346 (1997), by the narrowest of margins, the Supreme Court upheld the Kansas Sexually Violent Predator (SVP) statute against several constitutional attacks. With this Supreme Court imprimatur, SVP legislation has become the wave of the present-a politically popular solution to the problem of repeated sexual violence against women and children. Typically, after an individual identifiable as an SVP serves a criminal sentence, he is subjected to civil commitment and detained indefinitely. Many scholars assert that Hendricks was wrongly decided and that SVP legislation should be held unconstitutional. I review their arguments and conclude that after Hendricks, they are not likely to succeed. However, the Supreme Court did not consider an equal protection attack on SVP legislation. In my article, I explain why an equal protection challenge claiming that SVPs are similarly situated with other civilly committed patients is likely to fail. Nevertheless, I believe that a properly framed equal protection claim could, and should succeed. I explain why, based on other Supreme Court decisions, SVP legislation impermissibly discriminates against sentence-expiring convicts, incompetent criminal defendants, and nondangerous insanity acquittees by exempting from SVP commitment other individuals who are equally mentally disordered and dangerous.

9 citations



Journal ArticleDOI
TL;DR: Krieger and Hamilton as discussed by the authors argue that a powerful judicial and media backlash against the Americans with Disabilities Act is underway, and present an interdisciplinary symposium on public, judicial, and media responses to the ADA.
Abstract: Author(s): Krieger, Linda Hamilton | Abstract: Over the past three years, an increasing number of disability rights activists, practitioners, and scholarly commentators have claimed that a powerful judicial and media backlash against the Americans with Disabilities Act is underway. Even before issuance of three Supreme Court decisions in the Summer of 1999 narrowly construing the Act's coverage, there existed ample evidence supporting the backlash hypothesis. In two papers, a Foreword and an Afterword, Professor Krieger frames an interdisciplinary symposium on public, judicial, and media responses to the Americans with Disabilities Act soon to appear in the Berkeley Journal of Employment and Labor Law. In the first article, Backlash Against the Americans with Disabilities Act: Interdisciplinary Perspectives and Implications for Social Justice Strategies, Professor Krieger situates the intellectual project undertaken by the Symposium and introduces the fourteen articles and three responsive commentaries that comprise it. In the second paper, Socio-Legal Backlash, Professor Krieger posits a theoretical model of socio-legal change and retrenchment, situates the concept of backlash within that model, and applies the model to investigate and explain patterns of public, judicial and media reactions to the ADA.


Journal ArticleDOI
TL;DR: A fair reading of the U.S. Supreme Court's recent decisions reveals that these concerns are unwarranted as mentioned in this paper, and the Court has reaffirmed the core Com- merce Clause principles that accord Congress ample power to legis- late regarding state taxation of electronic commerce.
Abstract: Recent Supreme Court decisions taking a restrictive ap- proach to Congress' power to regulate interstate commerce under the Commerce Clause and a broader view of states' immunity from suit under the Eleventh Amendment arguably cast doubt on Con- gress' power to legislate a comprehensive solution to the problems raised by state taxation of electronic commerce. A fair reading of the U.S. Supreme Court's recent decisions reveals that these concerns are unwarranted. In fact, the Court has reaffirmed the core Com- merce Clause principles that accord Congress ample power to legis- late regarding state taxation of electronic commerce. Moreover, what- ever limits there may be on Congress's power to create federal juris- diction over nonconsenting states, Congress may employ a variety of methods, short of outright coercion, by which it may induce a state to adopt a legislative program consistent with federal interests.

Journal ArticleDOI
TL;DR: In this paper, the unintended consequences of an organization's decision to outsource investigations of sexual harassment following a claim of wrongdoing are examined, and advice on managing the investigative process is given.
Abstract: This article examines the unintended consequences of an organization’s decision to outsource investigations of sexual harassment following a claim of wrongdoing. United States Supreme Court decisions have affirmed an employer’s “vicarious liability” for failing to take reasonable care to prevent or correct promptly sexually harassing behavior. Organizations not possessing in-house expertise to conduct such investigations will likely seek expert assistance from knowledgeable and experienced attorneys or private investigators from outside the firm. According to a recent ruling by Federal Trade Commission staff, such externally conducted investigations fall under the provisions of the Fair Credit Reporting Act, thus placing additional compliance burdens on firms attempting to rid the workplace of gender-based discrimination. This article reviews these developments, offers advice on managing the investigative process, and suggests ways in which business might lobby for changes in public policy to ease this newest burden. After sexual harassment took center stage during the 1991 confirmation hearings of Clarence Thomas as associate justice of the United States Supreme Court, the number of harassment charges filed with the Equal Employment Opportunity Commission (EEOC) rose substantially. Concomitantly, lawsuits claiming violations of federal and state sexual harassment laws became commonplace. The growth of harassment filings has increased liability risks for all organizations, 123

Journal ArticleDOI
TL;DR: A three-year study by an interdisciplinary team of researchers from across Canada on media coverage of Supreme Court decisions as mentioned in this paper describes the changing role of the Supreme Court in Canadian public life and the role of media as both a vehicle for publicizing decisions and a check on the Court's power.
Abstract: This research report describes a three-year study that is being undertaken by an interdisciplinary team of researchers from across Canada on media coverage of Supreme Court decisions. The report describes the changing role of the Supreme Court in Canadian public life and the role of the media as both a vehicle for publicizing decisions and as a check on the Court's power. The study will explore media reporting from a number of vantage points-direct observation at the Court and in newsrooms, interviews, an in-depth study of how a number of important cases were reported, and an analysis of a year in the life of the Court. Workshops with members of the legal and journalistic communities and with citizens are also a crucial element in the study. Resume: Ce rapport de recherche decrit une etude de trois ans sur la couverture mediatique de decisions prises par la Cour supreme. Une equipe interdisciplinaire de chercheurs d'une part a l'autre du Canada a mene cette etude. Ce rapport decrit le role changeant de la Cour supreme dans la vie publique canadienne et le role des medias dans la diffusion des decisions de la Cour et la capacite des medias de restreindre les pouvoirs de celle-ci. Cette etude a recours a plusieurs approches differentes pour explorer la couverture mediatique: l'observation directe de la Cour meme et de salles de redaction d'informations; des entrevues; une etude en profondeur de la maniere dont plusieurs cas furent couverts; et l'analyse d'un an dans la vie de la Cour. En outre, des ateliers avec des membres des communautes juridiques et journalistiques et avec des citoyens sont des elements cruciaux de l'etude.

Book
15 Nov 2000
TL;DR: For more than half a century, armed only with his guitar, reams of songs, and conviction, Glazer has marshaled the power of music to fight for union representation in mills, mines, factories, and offices all over the country.
Abstract: Spiced with colorful anecdotes, leavened with humor, and rich with compassion for the struggles of the rank-and-file worker, "Labor's Troubadour" traces the life and work of labor balladeer Joe Glazer. For more than half a century, armed only with his guitar, reams of songs, and conviction, Glazer has marshaled the power of music to fight for union representation in mills, mines, factories, and offices all over the country. A performer, educator, and "musical agitator for all good causes," Glazer has sung on picket lines, in worn-out union halls, and at elegant dinners, using humor, irony, and pathos to drive home the message of unionism. With the ease and lan of a seasoned storyteller, Glazer tells of sharing platforms with political powerhouses including Harry Truman, Eleanor Roosevelt, Hubert Humphrey, Adlai Stevenson, George McGovern, John F. Kennedy, Lyndon Johnson, Ladybird Johnson, Jimmy Carter, and Bill Clinton. With sparks of humor, he describes his encounters with Jackie Kennedy, Rudolf Serkin, and other celebrities, as well as his relationships with Walter Reuther, George Meany, Cesar Chavez, Philip Murray, John Sweeney, and other outstanding leaders of the labor movement.During half a lifetime of rubbing shoulders with the powerful, however, Glazer's focus has never wavered from supporting workers' efforts to secure fair wages and decent working conditions. His reward has been to see his music bring unity out of discord, galvanize union support, and lift the spirits of striking workers who were running low on every resource except a shared faith in the strength of unity. In a career that has taken him all over the world to sing, write, and collect songs about the common human condition of working, Glazer has seen songs about the battle for the eight-hour day give way to songs about automation and cheap imports, with a constant refrain of union busters, scabs, solidarity, plant safety, and retirement benefits. Seventy of these songs are included in the book. An enthusiastic recruiter and promoter of new talent, Glazer has also drawn a number of new labor balladeers into the limelight, some of whom he profiles here. A lively and moving testament of "sticking to the union," "Labor's Troubadour" reveals the powerful role music can play in the serious business of changing the world. U.S. Supreme Court decisions change the lives of Americans for better or worse. Obviously, the stakes are high for litigants, but the outcomes also affect economic, social, and political life as the Court's actions direct law interpretation throughout the American legal system. Year after year the Supreme Court makes decisions that twist or turn American politics. In 2000, the Court decided the outcome of a presidential election. By doing so, some commentators claimed that the Court veered off its chartered constitutional course. Other commentators maintained that the Court brought needed stability to a political process that required finality. How it happens that a vote of nine justices substituted for the votes cast by citizens is not easily explained. In "Bush v. Gore" you can read and reflect on the entire proceedings, from the initial petitions urging the Supreme Court review through the briefs and reply briefs to the Court's opinions and dissents. More than that, you can listen to the proceedings as the justices ask questions and the attorneys answer. The recordings demonstrate as no transcript can the tension in the Court while it heard the arguments and the emotions that ran high as the justices dealt with each other. This is the first in a series of compact discs on major decisions made by the U. S. Supreme Court. "Bush v. Gore" takes full advantage of digital technology to allow access to each case as it was presented as well as to the decisions and dissents that came from it. Hardly an austere and impersonal body, the Supreme Court will come alive as individuals passionately involved in the logic, precedents, and consequences of law in the United States argue the great issues in our time.

Journal Article
TL;DR: In this article, the authors identify the key elements to establish Title IXLiability For Sexual Harassment and define the standards for LIABILITY under TITLE IX, and present a detailed analysis of the "deliberate divide and conqueror" standard.
Abstract: I. TITLE IX'S PROHIBITION AGAINST SEX DISCRIMINATION .............. 579 A. Title IY Covers Programs and Activities in Schools That Receive Federal F unds .......................................................................................................... 579 B. Expanding Title IX To Recognize A Private Cause ofAction for Sexual H arassm ent ................................................................................................. 583 II. DEFINING THE STANDARDS FOR LIABILITY UNDER TITLE IX ...... 587 A. Gebser v. Lago Vista Independent School District ..................................... 587 B. Davis v. Monroe County Board of Education ............................................. 588 C. Supreme Court Analysis .............................................................................. 591 HI. ANALYZING KEY ELEMENTS OF THE \"DELIBERATE INDIFFERENCE\" STANDARD TO ESTABLISH TITLE IX LIABILITY ............................................................................................. 594 A . Hypothetical ................................................................................................ 595 B. Key Elements To Establish Title IXLiability For Sexual H arassm ent ................................................................................................. 596 1. Naomi Is A Member of A Protected Group Based On Her Sex .............. 597 2. Naomi Was Subjected to Unwelcome Conduct Of A Sexual Nature ...... 598 a. Quid Pro Quo Sexual Harassment ....................................................... 600 b. Hostile Educational Environment ....................................................... 602 3. The Unwelcome Sexual Conduct Was So Severe, Pervasive, and

Journal Article
TL;DR: In this article, the authors argued that the traditional interpretation of in loco parentis is not entirely consistent with compulsory education laws and is inconsistent with other Supreme Court decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses.
Abstract: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.l I. INTRODUCTION Historically, the Supreme Court has adhered to two basic principles in its Fourth Amendment jurisprudence. "First, warrantless searches are per se unreasonable, subject only to a few specifically delineated and well-recognized exceptions."2 Second, highly intrusive searches, conducted under the warrant requirement or one of its exceptions, are reasonable "only on a showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched."3 However, prior to 1985, public school teachers and administrators were not subject to these Fourth Amendment requirements. According to the doctrine of in loco parentis, teachers and administrators acted under the authority of the parent, not of the state.4 As Blackstone explained in his Commentaries on the Laws of England, a parent may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.s In 1985, the Supreme Court, in New Jersey v. T.L.O.,6 held that the actions of public school teachers and administrators are governed by the Fourth Amendment. At issue in TL.O. was a high school administrator's search of a student's purse to obtain evidence confirming a teacher's direct observation that a girl was smoking in a lavatory in violation of school rules.' The T.L.O. Court found the traditional interpretation of in loco parentis to be "in tension with contemporary reality and the teachings of this Court."g Specifically, the Court held that the concept of in loco parentis is not entirely "`consonant with compulsory education laws"'9 and is inconsistent with other Supreme Court decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses of the Constitution.' Further, the Court had previously held that students do not "shed their constitutional rights . . . at the school house gate."jl Based upon these considerations, the Court held that public school teachers and administrators are subject to the limits of the Fourth Amendment and "cannot claim the parents' immunity from the strictures of the Fourth Amendment."12 Even so, the Supreme Court upheld the search at issue because, although school teachers and administrators are subject to the requirements of the Fourth Amendment, the unique circumstances and setting of a school require a diminution of Fourth Amendment requirements. The Court explained that "the preservation of order and a proper educational environment . . . in the schools requires a certain degree of flexibility in school disciplinary procedures," which entails "some easing of the restrictions to which searches by public authorities are ordinarily subject."13 Therefore, the Court held that neither the warrant requirement 14 nor the probable cause requirement"5 apply to a search of a public school student by a school teacher or administrator. "Rather," the Supreme Court wrote, "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search."16 The Supreme Court concluded that a search of a public school student by a teacher or administrator would be constitutionally permissible "when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."17 The Supreme Court recently expanded upon TL. …

Posted Content
TL;DR: The authors examines the interaction of academic and constitutional arguments about teaching religion and concludes that teaching theology, but not evangelism, is constitutional in state universities, but does not consider the content of the courses and focuses on the religious or public nature of the schools.
Abstract: This article examines the interaction of academic and constitutional arguments about teaching religion. It begins by describing the early perception that teaching religion in public universities is unconstitutional. I then explain that the academics, responding in 1963 to Supreme Court dicta in Schempp that teaching about but not of religion is constitutional, chose a subject matter standard according to which the teaching of religious studies, but not theology, is constitutional in state universities. About/of was never the Court's standard, however. Unlike the scholars, the justices often promoted an institutional principle that ignored the content of the courses and focused on the religious or public nature of the schools. Although recent Supreme Court decisions suggest that the Court does not accept the about/of line, the religion professors have not yet revisited their constitutional or academic standards. I conclude that the religion professors misinterpreted Schempp; teaching theology, but not evangelism, is constitutional.

Journal Article
TL;DR: In the employment context, the use of drug tests has been considered in a number of situations including: drug testing of all prospective employees, drug testing for employees who exhibit some signs of drug use (reasonable suspicion testing), random drug testing with current employees or random drug test of current employees in safety-sensitive positions; drug testing in accidents; and drug testing as part of an annual physical examination as discussed by the authors.
Abstract: In recent years, concerns about the increasing use of drugs has led many employers, both private and public, to use drug testing programs in an attempt to eliminate drug use in the workplace.(1) These testing programs raise numerous constitutional, employment law and statutory questions. This article will explore many of these questions. In the employment context, the use of drug tests has been considered in a number of situations including: drug testing of all prospective employees; drug testing of employees who exhibit some signs of drug use (reasonable suspicion testing); random drug testing of current employees or random drug testing of current employees in safety-sensitive positions; drug testing of employees who are involved in accidents; and drug testing as part of an annual physical examination.(2) When the employer is a government agency, the Fourth Amendment protections against unreasonable search and seizure(3) must be considered. Additionally, states which have expansively interpreted the search and seizure protections in their own state constitutions(4) must consider the implications of those constitutional protections on employer-mandated drug testing. This Article will begin with an evaluation of drug testing by public employers and conclude with an evaluation of drug testing by private employers. I. PUBLIC EMPLOYER DRUG TESTING Public employers who wish to drug test their employees must deal with the ramifications of the Fourth Amendment. The Fourth Amendment limits the right of government--federal, state and local--to engage in unreasonable searches and seizures.(5) The United States Supreme Court has held that drug testing constitutes a search for purposes of Fourth Amendment analysis.(6) Therefore, whenever a government employer wishes to engage in a drug testing process, it must act consistently with the Fourth Amendment.(7) A. United States Supreme Court Decisions The United States Supreme Court has decided four cases dealing with suspicionless drug testing. Two of the cases deal directly with drug testing by employers,(8) a third deals with a situation similar to employer drug testing,(9) and a fourth deals with drug testing of students.(10) This fourth case, Vernonia School District 47J v. Acton(11) permitted the testing of student athletes.(12) The third case was Chandler v. Miller,(13) in which the Court dealt with the constitutionality of a Georgia statute that required all candidates for public office to submit to a drug test.(14) The Court held that this statute was unconstitutional because a special need to engage in drug testing was not demonstrated.(15) It was this "special needs" approach that had been used by the Court in both Skinner v. Railway Labor Executives' Ass'n(16) and National Treasury Employees Union v. Von Raab(17)--the two cases involving employer drug testing--to justify drug testing in the absence of any particularized suspicion.(18) According to black letter law, searches and seizures without a warrant and probable cause are presumptively invalid.(19) However, there are numerous exceptions to this general rule.(20) In 1989, in the companion cases Skinner and Von Raab, the Supreme Court recognized the "special needs" approach as another exception to the general rule necessitating warrants and particularized suspicion.(21) In Skinner, the Court focused on regulations promulgated by the Federal Railroad Administration requiring drug and alcohol testing of train crew members involved in an accident--even though no particularized suspicion is required that any of the crew members had been using drugs or alcohol.(22) The Court found that there were "special needs" involved that permitted the dispensation of the particularized suspicion requirement.(23) Justice Kennedy in his opinion reasoned that heavy regulation of the railroad industry reduced the employees' expectation of privacy.(24) Furthermore, protecting the safety of the traveling public permitted the testing. …

Journal ArticleDOI
29 Sep 2000-Science
TL;DR: In this article, the authors argue that Congress should wait to see if a problem develops before acting, but some academics and state officials argue that such a delay would be counter-productive.
Abstract: Recent Supreme Court decisions may have given states, including research universities, a leg up on the competition by making them immune from suits over patent infringement. Many lawmakers and biomedical executives are pushing Congress to pass legislation closing what they see as a potential multibillion-dollar loophole in the patent laws. But some academics and state officials say that Congress should wait to see if a problem develops before acting.

Posted Content
TL;DR: In this paper, a series of Supreme Court decisions during the 1990s that reinvigorated, and at times reinvented, federalism-based limits on congressional power, a constitutional doctrine that has lain dormant since a trilogy of post-New Deal decisions repudiating the Court's Lochner era jurisprudence of reserved state powers.
Abstract: This essay is part of a symposium on a series of Supreme Court decisions during the 1990s that reinvigorated, and at times reinvented, federalism-based limits on congressional power, a constitutional doctrine that has lain dormant since a trilogy of post-New Deal decisions repudiating the Court’s Lochner era jurisprudence of reserved state powers. The long term practical impact of the recent decisions remains unclear, even if the basic contours of the new doctrine are fairly discernable. Indeed, the new federalism raises more questions than it answers, and its final frontiers will depend on how the Supreme Court resolves this next generation of federalism questions.I focus on one subset of questions raised by the recent federalism decisions: their implications for the scope of “other” federal powers, particularly the power to enforce the Reconstruction Amendments and the spending power. Until recently, the commerce power has been the dominant focus of cases concerning the scope of federal authority, and the Supreme Court has paid relatively less attention to the scope of other federal powers. But many of the new federalism limits are specific to the commerce power and do not appear to apply to other federal powers. In light of new sovereignty-based limits on the commerce power, including the “no commandeering rule” and decisions denying Congress the authority to abrogate state sovereign immunity under the commerce power, the power to enforce the Reconstruction Amendments and the spending power are especially attractive and potentially expansive alternative bases of authority for federal action. It is therefore to be expected that the courts will increasingly confront questions concerning the scope of these other federal powers. How the courts resolve those questions will go a long way toward determining whether the new federalism effects a significant practical shift in the balance of federal and state authority. Beyond its practical significance, the resolution of these issues is of immense doctrinal interest because the courts are engaged in their first extended analysis of the scope of congressional power to enforce the Reconstruction Amendments since the nineteenth century, and may soon address the spending power in much the same way.

Journal Article
TL;DR: The legal context of the Oregon Death with Dignity Act, discussed the efficacy of the tenets in the Guidebook, and explored ethical issues underlying the guidelines, particularly those pertaining to the meaning of a patient's request for assisted suicide and processes supporting informed consent as discussed by the authors.
Abstract: Oregon's Death with Dignity Act was first passed by a ballot initiative in 1994, but numerous judicial challenges delayed implementation of the Act. In November of 1997, following the United States Supreme Court decisions in Vacco v. Quill and Washington v. Glucksberg, which left the states' power to regulate physician-assisted suicide undisturbed, the Oregon voters upheld their law. Oregon remains the only state in the nation to authorize physician-assisted suicide. The Task Force to Improve the Care of Terminally Ill Oregonians published a Guidebook for health care providers on the Oregon Act, and the New England Journal of Medicine recently issued a special report on the first year's experience under the Act. This paper analyzes the legal context of the Oregon Death with Dignity Act, discusses the efficacy of the tenets in the Guidebook, and explores ethical issues underlying the guidelines, particularly those pertaining to the meaning of a patient's request for assisted suicide and processes supporting informed consent.

Posted Content
TL;DR: In this paper, a detailed litigator's guide to the four unanimous Daubert Supreme Court decisions since 1993 on expert witnesses in Federal courts is provided, along with a "does it work and why?" method for determining "reliability" based on fundamental legal and modern reasoning.
Abstract: This article includes a detailed litigator's guide to the four unanimous Daubert Supreme Court decisions since 1993 on expert witnesses in Federal courts. This article reviews the two of the four Supreme Court cases that explained why the experts involved were properly excluded, and also sets forth a "does it work and why?" method for determining "reliability" based on fundamental legal and modern reasoning. It then applies the Daubert Four in ten ways to environmental law and regulation. For administrative law in particular, it shows how and why Daubert's landmark toughening of the standard for experts to testify in federal trials applies to Federal administrative agency adjudication and rulemaking by little noticed but express terms in the APA statute, as well as the policy underlying the Daubert Four.

Posted Content
TL;DR: The legal context of the Oregon Death with Dignity Act is analyzed, the efficacy of the tenets in the Guidebook are discussed, and ethical issues underlying the guidelines are explored, particularly those pertaining to the meaning of a patient's request for assisted suicide and processes supporting informed consent.
Abstract: Oregon's Death With Dignity Act was first passed by a ballot initiative in 1994, but numerous judicial challenges delayed implementation of the Act. In November of 1997, following the United States Supreme Court decisions in Vacco v. Quill and Washington v. Glucksberg, which left the states' power to regulate physician-assisted suicide undisturbed, the Oregon voters upheld their law. Oregon remains the only state in the nation to authorize physician-assisted suicide. The Task Force to Improve the Care of Terminally Ill Oregonians published a Guidebook for health care providers on the Oregon Act, and the New England Journal of Medicine recently issued a special report on the first year's experience under the Act. This paper analyzes the legal context of the Oregon Death With Dignity Act, discusses the efficacy of the tenets in the Guidebook, and explores ethical issues underlying the guidelines, particularly those pertaining to the meaning of a patient's request for assisted suicide and processes supporting informed consent.

Journal ArticleDOI
TL;DR: Many constitutional scholars have taken a series of Supreme Court decisions in the 1960s and 1970s invalidating anti-contraception and anti-abortion laws to reflect judicial recognition of a constitutional right to engage in sexual activity for nonprocreative purposes as mentioned in this paper.
Abstract: Many constitutional scholars--including Richard Mohr, Richard Posner, Laurence Tribe, and Robin West--have taken a series of Supreme Court decisions in the 1960s and 1970s invalidating anti-contraception and anti-abortion laws to reflect judicial recognition of a constitutional right to engage in sexual activity for nonprocreative purposes. Protection of sexual activity is said to be a logical entailment of these "sexual freedom cases" because the anti-contraception and anti-abortion laws are treated as not interfering significantly with reproductive control, since people retained the option of abstaining from potentially reproductive sexual acts. This Article assesses this interpretation of the "sexual freedom cases" by considering a number of competing interpretations that have been offered. Although many of these accounts do not provide a persuasive alternative to the right-to-sex interpretation, approaches sounding in gender equality, bodily integrity, or procreative autonomy are capable of providing sufficiently plausible alternative accounts that the right-to-sex interpretation should not be viewed as logically dictated. To do so, however, these alternative interpretations need some method of bridging the gap in their logic exploited by the argument from abstinence. This Article offers ways of bridging that gap that rely on a constitutional constraint on the means by which government may pursue its ends, ruling out efforts that threaten physical harm or the creation of new persons. Thus supplemented, however, these alternative approaches treat the Supreme Court's contraception decisions and abortion decisions as grounded in different principles, thus disrupting the conceptual unity which the Court itself has treated the sexual freedom cases as possessing.

Journal ArticleDOI
TL;DR: Moore v. Dempsey, Powell v Alabama, Norris v. Alabama, and Brown v. Mississippi as discussed by the authors were four of the landmark criminal procedure cases of the 1920s and 1930s.
Abstract: This article takes a close look at four of the landmark criminal procedure cases of the 1920s and 1930s--Moore v. Dempsey, Powell v. Alabama, Norris v. Alabama, and Brown v. Mississippi. The article claims that it was no fortuity that modern criminal procedure originated in cases involving southern black defendants. For the Supreme Court to assume the function of superintending the state criminal process required a departure from a century and a half of tradition and legal precedent, both grounded in federalism concerns. The Justices were willing to take that leap only in cases of flagrant injustice--cases that by the 1920s and 1930s arose mainly in the South and involved black defendants charged with serious interracial crimes, usually rape or murder. Part I makes three related points about these egregious exemplars of Jim Crow justice, which provided the occasion for the birth of modern criminal procedure. First, the southern state appellate courts and the United States Supreme Court were operating on the basis of different paradigms when they evaluated the fairness of these criminal trials. For the southern courts, the simple fact that these defendants enjoyed the formalities of a criminal trial, rather than being lynched, represented a significant advance over what likely would have transpired in the pre-World War I era. For the United States Supreme Court, on the other hand, criminal trials were supposed to be about adjudicating guilt or innocence, not simply avoiding a lynching. Second, because these southern criminal trials were so egregiously unfair, public opinion in the nation generally supported the Supreme Court's interventions. Thus, these early criminal procedure cases hardly represent the sort of countermajoritarian judicial decisionmaking one often associates with landmark criminal procedure decisions, such as Mapp or Miranda. Third and finally, it seems quite likely that the southern state courts themselves would have intervened to rectify the obvious injustices involved in these cases had the circumstances been slightly different. Southern courts in the post-World War I period were becoming more committed to norms of procedural fairness, even in cases involving black defendants charged with serious interracial crimes. Yet in cases that aroused outside criticism of the South or that posed broader challenges to the system of white supremacy, the southern state courts regressed. Part II evaluates the impact of these Supreme Court decisions, in terms of both the precise issues involved (e.g., black service on juries) and the general treatment of blacks in the southern criminal justice system. It turns out that none of these rulings had a very significant direct impact on Jim Crow justice. This Part will explore some of the factors that explain the general failure of these Supreme Court decisions to affect the actual treatment of black criminal defendants in the South. Yet this Part also suggests that these criminal procedure rulings may have indirectly contributed to the modern civil rights movement by educating blacks about their rights, mobilizing protest in the black community, and rallying support among sympathetic whites who were horrified by revelations of Jim Crow practices at their worst. Part III connects these criminal procedure decisions to broader themes in constitutional and civil rights history, identifying some tentative lessons regarding the nature and consequences of Supreme Court constitutional decisionmaking and the dynamics through which American race relations have changed over time.

Journal Article
TL;DR: In this article, a series of Supreme Court decisions during the 1990s that reinvigorated, and at times reinvented, federalism-based limits on congressional power, a constitutional doctrine that has lain dormant since a trilogy of post-New Deal decisions repudiating the Court's Lochner era jurisprudence of reserved state powers.
Abstract: This essay is part of a symposium on a series of Supreme Court decisions during the 1990s that reinvigorated, and at times reinvented, federalism-based limits on congressional power, a constitutional doctrine that has lain dormant since a trilogy of post-New Deal decisions repudiating the Court’s Lochner era jurisprudence of reserved state powers. The long term practical impact of the recent decisions remains unclear, even if the basic contours of the new doctrine are fairly discernable. Indeed, the new federalism raises more questions than it answers, and its final frontiers will depend on how the Supreme Court resolves this next generation of federalism questions.I focus on one subset of questions raised by the recent federalism decisions: their implications for the scope of “other” federal powers, particularly the power to enforce the Reconstruction Amendments and the spending power. Until recently, the commerce power has been the dominant focus of cases concerning the scope of federal authority, and the Supreme Court has paid relatively less attention to the scope of other federal powers. But many of the new federalism limits are specific to the commerce power and do not appear to apply to other federal powers. In light of new sovereignty-based limits on the commerce power, including the “no commandeering rule” and decisions denying Congress the authority to abrogate state sovereign immunity under the commerce power, the power to enforce the Reconstruction Amendments and the spending power are especially attractive and potentially expansive alternative bases of authority for federal action. It is therefore to be expected that the courts will increasingly confront questions concerning the scope of these other federal powers. How the courts resolve those questions will go a long way toward determining whether the new federalism effects a significant practical shift in the balance of federal and state authority. Beyond its practical significance, the resolution of these issues is of immense doctrinal interest because the courts are engaged in their first extended analysis of the scope of congressional power to enforce the Reconstruction Amendments since the nineteenth century, and may soon address the spending power in much the same way.

Journal ArticleDOI
TL;DR: MURPHY as discussed by the authors argued that the Strickland standard is a violation of the Sixth Amendment, and that it can not be applied to the case of ineffective assistance of counsel (IAC).
Abstract: AMY R. MURPHY [*] I INTRODUCTION Not until the twentieth century did the United States Supreme Court rule that all criminal defendants, whether in state or federal court, had a right to be represented by counsel under the Sixth Amendment. [1] Until nearly the end of that century, however, the Court went no further than stating that defendants had a right to counsel, without specifying whether that meant competent counsel. In 1984, there were two landmark cases in Sixth Amendment jurisprudence. The first is the source of the requirement that counsel provide effective assistance, although the Court did not clarify what such assistance would entail. [2] Out of this requirement have arisen countless appeals based on ineffective assistance of counsel ("IAC"). Until the Court heard the second landmark case, Strickland v. Washington, [3] that same year, courts ruled on these claims without any guidance. The Court defined effective assistance of counsel according to what it was not: a deficient performance that so prejudiced the defense as to depri ve the defendant of a fair trial. [4] The Court gave little guidance about what constitutes a constitutionally deficient performance, and even less to how prejudicial the effect of the deficient performance has to be in order to be found unconstitutional. As a result, the Court did little more than to sanction the broad discretion already employed by courts in considering IAC claims. This discretion leads to arbitrary determinations in capital cases, which, although they may satisfy the low bar set for Sixth Amendment analysis, violate the Eighth Amendment. In the 1995 Law and Contemporary Problems symposium entitled "Toward a More Effective Right to Assistance of Counsel," Professor Uelmen gave a "guided tour" of the Sixth Amendment from which he gleaned several lessons. [5] First, criminal defense will never have a high funding priority in this nation. [6] Second, the difference between no counsel and incompetent counsel is a judicial fiction that enables courts to make distinctions under the Sixth Amendment that do not exist in reality. [7] Finally, Professor Uelmen noted the shortcomings in the current standards for legal counsel: "[I]f courts regarded the competence of defense counsel as just as essential to the achievement of justice as the competence of the judge, we would certainly see a different standard of competence applied." [8] It is these lessons, combined with the utter lack of any meaningful guidance from the Supreme Court as to what constitutes a prejudicial effect, that makes the Strickland standard a violation of the Eighth Amendment. Just a s legislation that gave juries complete and unguided discretion over the sentencing of capital defendants was deemed unconstitutional because it resulted in arbitrary punishment, [9] so the Strickland standard is unconstitutional because it recreates those same problems at the appellate level. Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in Strickland has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. As a result, there is little consistency within judicial districts or across districts. [10] Legal assistance that might be constitutionally deficient and prejudicial before one judge may not even be considered unreasonable before another. Although most courts and legal scholars have examined the constitutionality of the assistance of counsel on an individual basis under Sixth Amendment jurisprudence, the appellate review of TAC claims in capital cases itself violates the Eighth Amendment prohibition of cruel and unusual punishment, especially as it is analyzed in Furman v. Georgia," because it results in impermissible arbitrariness in the sentencing of capital defendants. Part II of this note begins with a review of the right to couns el, which leads to a discussion of the importance of this right in capital cases. …