Constitutional Law

The Eighth Amendment’s Time to Shine: Previewing Florida’s Imminent Constitutional Crisis in Capital Punishment

Melanie Kalmanson

Abstract In April 2023, Florida Governor Ron DeSantis enacted legislation that lowers the jury vote necessary to impose a sentence of death in the state to 8–4. The new statute removes the procedural safeguards that were implemented after the U.S. Supreme Court held in 2016 that Florida’s capital sentencing scheme violated defendants’ right to jury […]

Adversary Democratic Due Process

Martin H. Redish & Victor Hiltner

Abstract Legal minds have long quarreled over the true meaning of the Due Process Clauses of the Fifth and Fourteenth Amendments, but little consensus has emerged as to their scope and application. Despite the doctrinal significance and ubiquity of due process, scholars have devoted troublingly little attention to the underlying premises or “DNA” of this […]

Personal Jurisdiction’s Moment of Opportunity: A Reform Blueprint for Originalists and Nonoriginalists

Allan Erbsen

Abstract Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the […]

The Appropriate Appropriations Inquiry

Chad Squitieri

Abstract The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause […]

Innocent Until Predicted Guilty: How Premature Predictive Policing Can Lead to a Self-Fulfilling Prophecy of Juvenile Delinquency

Nadia Rossbach

Abstract Predictive policing is an innovative, evolving approach to crime prevention that law enforcement has recently embraced. These programs are designed to detect crime patterns by employing machine-learned algorithms to identify high-crime areas as well as likely offenders. In doing so, law enforcement hopes to implement a proactive approach in which officers will be able […]

Fair Notice, The Rule of Law, and Reforming Qualified Immunity

Nathan S. Chapman

Abstract After a series of highly publicized incidents of police violence, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” […]

Reassigning Batson: A Modern Approach

Max Angel

Abstract In Batson v. Kentucky, the Supreme Court of the United States held that using peremptory challenges to strike jurors solely on their race violates the Equal Protection Clause. Following that decision, the Supreme Court extended Batson to gender-based peremptory challenges, holding that state-sponsored group stereotypes rooted in historical prejudice that bars a potential juror […]

In Search of the Presumption of Regularity

Aram A. Gavoor & Steven A. Platt

Abstract The presumption of regularity is an imprecise principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but the contours of the presumption were never […]

Black Lives Matter in the Jury Box: Abolishing the Peremptory Strike

Payton Pope

Abstract Since its creation, the Batson Challenge has been widely criticized as a failure. It does not prevent discrimination in the jury selection process, has no bite, and does not serve as an adequate incentive to prevent discriminatory practices. The Supreme Court of the United States has had multiple opportunities in the last thirty years […]

Supreme Risk

Benjamin P. Edwards

Abstract While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such […]

When Police Volunteer to Kill

Alexandra L. Klein

Abstract The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the […]

“Shall Not Be Construed”: Reversal of Supreme Court Decisions by Constitutional Amendment

John v. Orth

Abstract This Article considers the way in which small changes of wording can signal large changes of thought in the United States Constitution (Constitution). Drawing upon examples found in the Eleventh and Sixteenth Amendments, and in the Reconstruction Amendments, the Article shows that there are two ways to reverse a U.S. Supreme Court decision by […]

Plurality Decisions and the Ambiguity of Precedential Authority

Ryan C. Williams

Abstract The Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworksfor addressing the problem […]

State-Created Environmental Dangers and Substantive Due Process

Shannon Roesler

Abstract This Article focuses on litigation arising out of contaminated drinking water in Flint, Michigan, lead paint in New York City public housing, and harms to young people from the impacts of climate change. At the heart of each case is a claim that state officials violated the plaintiffs’ substantive due process rights by creating […]

If it Ain’t Broke, Don’t Fixate on it: Gadamer, Gedicks, and Original Public Meaning

Michael C. Dorf

Abstract Response to Frederick Mark Gedicks, The “Fixation Thesis” and Other Falsehoods In The “Fixation Thesis” and Other Falsehoods, Professor Frederick Mark Gedicks argues that public meaning originalists are mistaken in their claim that the Constitution today means just what it meant when it was adopted. Unlike living constitutionalists who say that the document’s meaning […]

The Private Delegation Doctrine

Paul J. Larkin, Jr.

Abstract Since its earliest days, Congress has delegated lawmaking authorityto Executive Branch officials. Over time, a body of Supreme Courtcaselaw, known as the Delegation Doctrine, has grown up (ostensibly) toregulate Congress’s ability to offload legislative authority toadministrative agencies. Occasionally, however, Congress, like statelegislatures and municipal councils, bypasses executive officials anddirectly delegates lawmaking power to private […]

Testa, Crain, and the Constitutional Right to Collateral Relief

Carlos M. Vázquez & Stephen I. Vladeck

Response to Ann Woolhandler & Michael G. Collins, State Jurisdictional Independence and Federal Supremacy Abstract        In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held […]

Affording The Franchise: Amendment 4 & The Senate Bill 7066 Litigation

Dalia Figueredo

Abstract Felon re-enfranchisement statutes that condition the restoration ofvoting rights on the payment of legal financial obligations have beenchallenged under the Fourteenth and Twenty-Fourth Amendments to theU.S. Constitution. To date, these challenges have been unsuccessfulbecause felons are not a protected class, disenfranchised felons do nothave a fundamental right to vote under existing case law, and […]

‘Nothing Compares 2 U:’ A Response to Beyond Compare: A Codefendant’s Prison Sentence as a Mitigating Factor in Death Penalty Cases

John H. Blume & Megan E. Barnes

Abstract Response to Jeffrey Kirchmeier, Beyond Compare: A Codefendant’s Prison Sentence as a Mitigating Factor in Death Penalty Cases The argument that the Court’s desire to eliminate arbitrariness in capital sentencing should allow juries to consider co-defendant sentences applies with equal force to juveniles sentenced to life without parole—to whom the Court has applied similar […]

A Knock on Knick’s Revival of Federal Takings Litigation

Stewart E. Sterk & Michael C. Pollack

Abstract In Knick v. Township of Scott, the United States Supreme Court heldthat a landowner who claimed to have suffered a taking at the hands ofstate or local officials could seek redress in federal court without the needto first seek compensation through state proceedings. This holding raisesserious theoretical and practical concerns. On the theoretical side, […]

Aesthetic Judging and the Constitution (or, Why Supreme Court Justice Are Less Like Umpires and More Like Figure-Skating Judges)

Chad M. Oldfather

The “Fixation Thesis” and Other Falsehoods

Frederick Mark Gedicks

Abstract This Article challenges the so-called “fixation thesis” of public meaning originalism. This thesis holds that the meaning of the Constitution was fixed when adopted and exists in the past as a fact, unaffected by what anyone thinks about it in the present. For public meaning originalists, constitutional meaning is always ontologically “there” in the […]

Objectively Correct

William D. Araiza

Abstract The nub of Professor Smith’s Response is that animus doctrine reflects the polarization of our culture to the point where the only common ground is a consensus that “it is wrong to act from pure hatred or hostility.” That realization both unlocks a doctrinal box but also warns of its contents. If hatred or […]

Habeas Mentem: Revisiting Sufficiency-of-Counsel Standards in Post-AEDPA Habeas Corpus Proceedings

Alejandra S. Alvarez

Abstract The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has contributed to long-standing complexities in our understanding of habeas corpus and its function as a device for judicial inquiry into the constitutionality of imprisonment. Since its passage and subsequent interpretations by Congress and the courts, criminal defendants have faced heightened challenges in seeking […]

Let Them Eat Cake or Let Him Not Bake? Summary and Analysis of Masterpiece Cakeshop v. Colorado Civil Rights Commission

Michael Beato

Unlike most cases brought before the United States Supreme Court, Masterpiece Cakeshop v. Colorado Civil Rights Commission captured the nation’s attention. In this case, free speech rights were pitted against an anti-discrimination law, and religious rights were pitted against the dignity of same-sex marriage. While these constitutional doctrines might seem nuanced and obscure to most, […]

Oh What a Truism the Tenth Amendment Is: State Sovereignty, Sovereign Immunity, and Individual Liberties

Sharon E. Rush

Abstract The United States Supreme Court takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments. The Court has infused these interpretations with the […]

Animus and its Discontents

William D. Araiza

Abstract The concept of “animus” has taken center stage in high-stakes constitutional rights adjudication. Both in major equal protection cases and, more recently, in litigation over President Trump’s immigration bans and religion-based denials of commercial services to lesbians and gays, animus has emerged as a favored doctrinal tool of courts committed to protecting individual rights […]

A Statutory National Security President

Amy L. Stein

Abstract Not all presidential power to address national security threats stems from the Constitution. Some presidential national security powers stem from statute, creating complicated questions about the limits of these powers delegated to the President by Congress. Scholars who have explored ways to achieve the proper balance between responsiveness and accountability have generally focused on […]

Can the State Proclaim Life After Death? Hellerstedt and Regulating the Disposition of Fetal Remains

Written by: Thomas J. Molony

Abstract The United States Supreme Court dealt a significant blow to abortion opponents in Whole Woman’s Health v. Hellerstedt, but the 2016 ruling did not dampen their resolve. Just days after Texas lost the Hellerstedt battle, the Texas Department of State Health Services (DSHS) returned to the fight and proposed regulations requiring health care facilities […]

Why Congress Matters: The Collective Congress in the Structural Constitution

Written by: Neomi Rao

Abstract Congress currently operates in the shadow of the administrative state. This Article provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep […]

“Revenge Porn” Reform: A View From the Front Lines

Written by: Mary Anne Franks

Abstract The legal and social landscape of “revenge porn” has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the term “revenge porn.” As of July 2017, thirty-eight states and Washington, D.C. had criminalized the conduct; […]

Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage in the Post-Obergefell Era

Written by: Robert Keefe

Abstract Gay and lesbian partners used adult adoption to create family relationships and to ensure inheritance and property rights in the decades before the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide. Same-sex partners who chose adult adoption as an alternative to marriage before the Obergefell decision must now dissolve the adoption […]

By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care

Written by: Gary Lawson & Guy I. Seidman

Abstract Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process of Law Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something functionally very similar to substantive due process, however, is easily justifiable […]

The Possibility of Illiberal Constitutionalism?

Written by: Mark Tushnet

Abstract This Essay examines the possibility of an illiberal constitutionalism in which some citizens have “second-class” status – protected against arbitrary government action but with restricted rights. Drawing on scholarship dealing with “dual states” and federalism, the Essay argues that illiberal constitutionalism is possible conceptually but may be quite difficult to sustain over time in […]

Rational Basis Is The Only Rational Solution: Resolving Foreign Commerce Clause Confusion

Written By: Justin Senior

Abstract Congress enacted the PROTECT Act in 2003 to curtail the sexual abuse of children by U.S. citizens abroad. While the Act has not received much attention from scholars or courts, defendants in court consistently challenge its constitutionality. Congress maintains that it has the Foreign Commerce Clause power to prohibit the illicit sex activity in […]

Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes

Written by: Justin D. Levinson, Mark W. Bennett, & Koichi Hioki

Abstract American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek […]

Undignified: The Supreme Court, Racial Justice, and Dignity Claims

Written by: Darren Lenard Hutchinson

Abstract The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies […]

Due Process and Agency: Compliments, Not Substitutes

Timothy Sandefur

Abstract Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In 1816, in answer to an inquiry from a lawyer, former president Thomas Jefferson wrote that the political writings of Aristotle, valuable as they may be in general, were “almost useless” for understanding […]

Are Professors Lawson and Seidman Serious About A “Fiduciary Constitution”?

Sotirios A. Barber

Abstract Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care, Professors Gary Lawson and Guy I. Seidman elaborate part of their argument for a “fiduciary Constitution” that […]

Takings and Extortion

Written by: Daniel P. Selmi

Abstract The Supreme Court has repeatedly employed an extortion narrative in deciding when governmental actions imposing exactions on development projects constitute takings under the Fifth Amendment. In that narrative, local officials act in ever-present bad faith by misusing their regulatory powers to coerce concessions by developers seeking land use approvals. While the extortion narrative has […]

Andrew Jay McClurg, The Second Amendment Right To Be Negligent

68 Fla. L. Rev. 1 Abstract Only two constitutional rights—the First and Second Amendments—have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for […]

R. George Wright, Content-Neutral and Content-Based Regulations of Speech: A Distinction That Is No Longer Worth the Fuss

Introduction The binary distinction between content-neutral and content-based speech regulations is of central importance in First Amendment doctrine. This distinction has been the subject of U.S. Supreme Court attention on several occasions.  As the case law has evolved, however, this apparently crucial distinction has become less clear, coherent, and practical, such that further attempts to […]

Margaret Hu, Big Data Blacklisting

Abstract “Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data […]

Vitaliy Kats, Because, the Internet: The Limits of Online Campaign Finance Disclosure

During the 2011–2012 election cycle, Shaun McCutcheon contributed $33,088 to sixteen different candidates for federal office.  McCutcheon’s donations complied with the base limits the Federal Election Commission (FEC) set for contributions to individual candidates.McCutcheon wanted to contribute more but was barred by the FEC’s aggregate limit on contributions.In June of 2012, McCutcheon and the Republication […]

Marla Spector Bowman, Docs v. Glocks: Doctors, Guns, Discrimination, and Privacy – Is Anyone Winning?

Americans discuss some of the most intimate details of their lives within the small confines of their neighborhood doctor’s office. Many Americans, however, may be taken aback if their physician asked them whether they owned a firearm during a routine physical examination. Although most Americans might not consider firearms education to be their physician’s primary […]

Rigel C. Oliveri, Single Family Zoning, Intimate Association, and the Right to Choose Household Companions

Many local governments use single-family zoning ordinances to restrict occupancy in residential areas to households whose members are all related to one another by blood, marriage, or adoption. The Supreme Court upheld such ordinances in the 1974 case of Belle Terre v. Boraas, and they have been used to prevent all sorts of groups from […]

Keith Cunningham-Parmeter, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court’s decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state […]

John F. Preis, How the Federal Cause of Action Relates to Rights, Remedies, and Jurisdiction

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper […]

Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts […]

Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s […]

Sean F. Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

The U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District injected significant confusion into negotiations over land development approvals. The principal source of this confusion is the majority’s unwillingness to clarify when and how a proposed condition offered in a negotiation becomes a demand that triggers heightened scrutiny under the Takings […]

Brannon P. Denning, One Toke over the (State) Line: Constitutional Limits on "Pot Tourism" Restrictions

Among the myriad legal issues confronting states—like Colorado—that are experimenting with the legalization of marijuana, is the need to regulate “pot tourism” by visitors from other states where marijuana remains illegal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce […]

Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity

The right to a jury trial, the presumption of innocence, the social compact between the individual and the State—these are among the weighty interests in our criminal justice system that can be bolstered or undermined through attorney pretrial publicity. The procedural protections that exist in the Constitution for criminal justice are neither technicalities nor formalities. […]

Adam M. Hapner, You Have the Right to Remain Silent, But Anything You Don’t Say May Be Used Against You: The Admissibility of Silence as Evidence After Salinas v. Texas

In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel Alito emphasized that before a suspect can rely on the privilege against self-incrimination, the suspect […]

Marc B. Hernandez, Guilt Without Mens Rea: How Florida’s Elimination of Mens Rea for Drug Possession is Constitutional

The Florida Comprehensive Drug Abuse Prevention and Control Act is almost unique among criminal drug statutes in the United States. Like all states, Florida prohibits the possession, sale, and delivery of certain controlled substances. However, a recent revision of the Florida Comprehensive Drug Act removed Florida’s burden of proving one aspect of defendants’ mens rea […]

Edward A. Purcell, Jr., Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s […]

Emily S. Bremer, The Unwritten Administrative Constitution

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, […]

Peter L. Markowitz & Lindsay C. Nash, Constitutional Venue

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct […]

Rodney A. Smolla, Regulating the Speech of Judges and Lawyers: The First Amendment and the Soul of the Profession

The legal profession has historically asserted moral and legal authority to substantially control the speech of judges and lawyers. This impulse to control the speech of judges and lawyers is driven by many of the profession’s most strongly held interests and values. These include such interests as ensuring the fair administration of justice, the promotion […]

Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly […]

Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules

This Article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice. Once an automatic remedy for any constitutional […]

Sergio J. Campos, Class Actions and Justiciability

A lingering issue in class action law concerns the case or controversy requirement of Article III, otherwise known as the requirement of justiciability. For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative? This Article argues that […]

Ben Trachtenberg, Testimonial Is As Testimonial Does

In the decade since Crawford v. Washington declared “testimony” to be the touchstone of the Confrontation Clause, courts—from the humblest criminal trial court to the Supreme Court itself—have struggled with two problems. First, defining “testimonial” has proven difficult. Second, in certain cases, the results of defining “testimonial” as Crawford would seem to require have proven […]

Richard D. Friedman, The Mold That Shapes Hearsay Law

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, Professor Friedman argues that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use […]

Kevin Barry , From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual Abolition of the Death Penalty

This spring, the Connecticut Supreme Court will take up a novel question, unprecedented in modern death penalty jurisprudence: Can a state gradually abolish its death penalty? Restated, can it leave the sentences of those currently on death row in place but abolish the death penalty going forward? This Article argues that it can. On simple […]

Ellen English, “Camels Agree with your Throat" and Other Lies: Why Graphic Warnings are Necessary to Prevent Consumer Deception

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued […]

Ideology, Gentile and Pretrial Attorney Speech: A Response to Professor Tarkington

Kenneth B. Nunn

Abstract Response to Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity Attorneys are officers of the court and essential to the proper functioning of the criminal justice system. In that system, they represent opposing parties with conflicting, indeed adversarial, interests. Should the speech of attorneys be regulated in the American […]

Chad Flanders, Pardons and the Theory of the “Second-Best”

This Article explains and defends a “second-best” theory of pardons. Pardons are second-best in two ways. First, pardons are second-best because they represent, in part, a response to a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons […]

Dane Ullian, Retroactive Application of State Long-Arm Statutes

A precondition to a court’s exercising any measure of authority over an individual or an entity is the court’s establishment of personal jurisdiction. A court may exercise personal jurisdiction over a nonresident defendant only if the forum state provides a statutory basis for exercising jurisdiction over the nonresident and the exercise of jurisdiction satisfies the constitutional due process standard. Personal […]

Amy Widman, The Rostrum Principle: Why the Boundaries of the Public Forum Matter to Statutory Interpretation

There is a section of dicta in the recent Supreme Court decision on health care reform that might portend new ground, although not in Commerce Clause jurisprudence. Rather, in his dissent, Justice Antonin Scalia did a curious thing for those interested in statutory interpretation: He cited an op-ed in The New York Times that quoted […]

Kathleen Carlson, Ryan v. Gonzalez and the Potential Elimination of the Ineffective Assistance of Counsel Post Conviction Failsafe

Recently, the United States Supreme Court addressed in Ryan v. Gonzales “whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings.” In a unanimous decision, the Court held that “the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when […]

Randy E. Barnett, No Small Feat: Who Won the Health Care Case (and Why Did So Many Law Professors Miss the Boat)?

In this Essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, I describe five aspects of the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius that are sometimes overlooked or misunderstood: (1) the Court held that imposing economic mandates on the […]

Naomi Harlin Goodno, When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause

The world is becoming a smaller place. Technology and the Internet have made global travel and communication easier, quicker, and more common. Novel legal issues arise every day to deal with this modern interconnected world. How does the law address these new problems? Congress is allowed “[t]o regulate Commerce with foreign Nations, and among the […]

Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers

Ask anyone whether the Constitution permits discrimination on the basis of religion, and the response will undoubtedly be no. Yet the modern Supreme Court has not recognized that the antidiscrimination command of the Fourteenth Amendment protects religion in the same way that the Amendment protects against discrimination on the basis of race or gender. In […]

Mariko K. Shitama, Bringing Our Children Back From the Land of Nod: Why the Eighth Amendment Forbids Condemning Juveniles to Die in Prison for Accessorial Felony Murder

Over 2,589 individuals sit in prison, where they have been condemned to die for crimes they committed before their eighteenth birthday. At least a quarter of these individuals received this sentence for accessorial felony murder, or a crime in which they did not kill or intend to kill the victim. Beginning with Roper v. Simmons in […]

Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments"

Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state […]

Christian Turner, State Action Problems

The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, as the Supreme Court did in Shelley v. Kraemer, are either vastly over-inclusive or fail to explain our law and values. A better approach is to understand the […]

Hanah Metchis Volokh, Constitutional Authority Statements in Congress

“Congress has the power to enact this legislation pursuant to the following: This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 2 of the United States Constitution.” “Congress has the power to enact this legislation pursuant to the following: The Katie Sepich Enhanced DNA Collection Act is […]

Janai S. Nelson, The First amendment, Equal Protection and Felon Disenfranchisement: A New Viewpoint

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen‘s ideas are worthy of inclusion in […]

Nicole Kuncl, Seeing Red: The Legal Backlash Against Red-Light Cameras in Florida

This Note will examine Florida’s Mark Wandall Traffic Safety Act, which authorizes the use of traffic infraction detectors (red-light cameras) to enforce traffic laws. Florida, like many other states, currently finds itself in the midst of a heated debate over the use of red-light cameras to issue traffic citations. Strong arguments can be made both […]

Gary Lawson, No History, No Certainty, No Legitimacy . . . No Problem: Originalism and the Limits of Legal Theory

Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould, lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning […]

Martin H. Redish & Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a "Controlled Activism" Alternative

No problem generates more debate among constitutional scholars than how to approach constitutional interpretation. This Article critiques two representative theories (or families of theories), originalism and nontextualism, and offers a principled alternative, which we call “controlled activism.” By candidly acknowledging the judge’s creative role in constitutional lawmaking, controlled activism promises real limits on judicial discretion.

Amanda Harris, Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and […]

Gerard N. Magliocca, The Gold Clause Cases and Constitutional Necessity

This Article presents a case study of how constitutional actors respond when the rule of law and necessity are sharply at odds and provides some background on Section Four of the Fourteenth Amendment. In 1935, the Supreme Court heard constitutional challenges to the abrogation of “gold clauses” in contracts and Treasury bonds. Gold clauses guaranteed […]

Lauren Millcarek, Eighteenth Century Law, Twenty-First Century Problems: Jones, GPS Tracking, and the Future of Privacy

In 2004, law enforcement officers began investigating Antoine Jones, a Washington, D.C. nightclub owner, for suspected drug trafficking. After gathering information through stakeouts, cameras, and a wiretap on Jones’ phone, the officers obtained a warrant to place a Global Positioning System (GPS) tracker on Jones’ wife’s car, which Jones possessed and used regularly. However, the […]

Fay O. Pappas, Wrong Means to an Unjust End? The Eleventh Circuit's Decision in First Vagabonds Church of God

In 2005, Orlando Food Not Bombs (OFNB), a conglomeration of political activists who advocate a “right to food,” began conducting “food-sharing events” once a week in downtown Orlando, Florida. OFNB distributed free vegan meals in Lake Eola Park to the hungry and homeless. Soon, however, the City began receiving complaints related to the number of […]

E. Donald Elliott, Twombly in Context: Why Federal Rule of Civil Procedure 4(B) Is Unconstitutional

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without […]

R. George Wright, Electoral Lies and the Broader Problems of Strict Scrutiny

States often attempt to regulate political speech in the form of deliberate lies related to ballot initiatives, referenda, candidates, or their political positions. Some courts focus on the various harms of electoral lies, while others focus more on the risks of bias and partisan abuse involved in such speech regulations; the cases are in disarray. […]

Meghan J. Ryan, The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants‘ constitutional rights, often impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning when one considers that judges are the individuals charged with determining whether […]

Abigail R. Moncrieff, Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts‘ incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect […]

Jocelyn Ho, Bullied to Death: Cyberbullying and Student Online Speech Rights

In the age of online social networking, photo and video sharing, blogs, text messaging, and other forms of communication technology, bullying among teenagers has reached a whole new level. It has transcended the traditional schoolyard context and crossed into cyberspace, leaving victims of bullying more vulnerable than ever. Recent headline-grabbing suicides, such as the cyberbullying-related […]

William W. Berry III, Practicing Proportionality

At the heart of the Eighth Amendment‘s Cruel and Unusual Punishments Clause are two concepts of proportionality—absolute and relative. Absolute proportionality (“cruel”) asks whether the sentence is commensurate with the state‘s purposes of punishment. Relative proportionality (?unusual?), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets […]

Rebecca E. Zietlow, Popular Originalism? The Tea Party Movement and Constitutional Theory

The U.S. Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the Constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism—constitutional interpretation outside of the courts—to invoke originalism as interpretive method. The Tea Party movement thus provides an excellent […]

Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure […]

Kelly G. Dunberg, Just What the Doctor Ordered? How the Patient Safety and Quality Improvement Act May Cure Florida’s Patients’ Right to Know About Adverse Medical Incidents (Amendment 7)

This Note addresses the impact of Florida’s Patients’ Right to Know About Adverse Medical Incidents (commonly known as Amendment 7) on the peer review process and the quality of healthcare in Florida. Enacted in 2004 as an amendment to the Florida Constitution, Amendment 7 provides citizens access to records and reports of past adverse medical […]

R. Michael Cassidy & Gregory I. Massing, The Model Penal Code’s Wrong Turn: Renunciation as a Defense to Criminal Conspiracy

While the Model Penal Code was certainly one of the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing “renunciation” as a defense to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows […]

Allison Fischman, Case Comment: Preserving Legal Avenues For Climate Justice In Florida Post-American Electric Power

64 Fla. L. Rev. 295 (2012)|

Caycee Hampton, Confirmation of a Catch-22: Glik V. Cunniffe and the Paradox of Citizen Recording

63 Fla. L. Rev. 1549 (2011)| | | | On October 1, 2007, Simon Glik observed several police officers arresting a young man on the Boston Common. Concerned that the officers were employing excessive force, Glik began to record the arrest with his cell phone. After successfully arresting the young man, an officer asked Glik […]

Kathryn A. Kimball, Losing our Soul: Judicial Discretion in Sentencing Child Pornography Offenders

63 Fla. L. Rev. 1515 (2011)| | | | Child pornography offenders capitalize on the vulnerability of children and find pleasure in their victims’ humiliation. In United States v. Irey, the defendant sadistically raped, sodomized, and tortured more than fifty prepubescent girls and then broadcast this abuse across the Internet; yet the court characterized Irey […]

Jordan E. Pratt, An Open and Shut Case: Why (and How) The Eleventh Circuit Should Restrain the Government's Forum Closure Power

63 Fla. L. Rev. 1487 (2011)| | | |||| The Supreme Court has made it clear that when the government opens a nontraditional public forum, it retains the power to shut down the forum subsequently. But the Court has not specifically addressed whether this forum closure power knows any constitutional limitations. Several circuits, including the […]

Scott A. Moss, The Overhyped Path from Tinker to Morse: How the Student Speech Cases Show the Limits of Supreme Court Decisions-for The Law and for the Litigants

63 Fla. L. Rev. 1407 (2011)| | | | Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political […]

Jonathan Witmer-Rich, Interrogation and the Roberts Court

63 Fla. L. Rev. 1189 (2011)| | | ARTICLE :: Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts […]

R. Benjamin Lingle, Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation

63 Fla. L. Rev. 985 (2011)|  | | NOTE :: The preservation of historic structures provides communities across the nation with both a source of pride in our national history and a window through which to view that history. Governments’ powers of eminent domain have long served as a tool for historic preservation; however, eminent domain […]

Jim Gash, The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good

63 Fla. L. Rev. 525 (2011)| | | | INTRODUCTION :: It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple […]

Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago

63 Fla. L. Rev. 487 (2011)| | | | INTRODUCTION :: Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they […]

Lee Goldman, Student Speech and the First Amendment: A Comprehensive Approach

63 Fla. L. Rev. 395 (2011)| |  | | INTRODUCTION :: Can a school discipline a student for creating a vulgar parody profile of the school principal or another student on the website MySpace? Can it preclude a student from wearing at school a T-shirt that reads, “Homosexuality is shameful”? These are some of the difficult […]

Steven G. Calabresi & Nicholas Terrell, The Number of States and the Economics of American Federalism

63 Fla. L. Rev. 1 (2011)| | | | INTRODUCTION :: In 1789, it was possible to speak of a federation of distinct states joined together for their mutual advantage, but today, it is rather the nation that is divided into subnational units. What caused this shift in focus from the states to the federal […]

Tim Sobczak, The Consent-Once-Removed Doctrine: The Constitutionality of Passing Consent from an Informant to Law Enforcement

62 Fla. L. Rev. 493 (2010) |   |   |   | ABSTRACT :: In 2002 Brian Bartholomew was charged with possession of methamphetamine. In hopes of obtaining leniency, Bartholomew chose to assist the Central Utah Narcotics Task Force as a confidential informant. As an informant, Bartholomew arranged to buy drugs from Afton Callahan […]

Andres Healy, The Constitutionality of Amended 10 U.S.C. § 802(A)(10): Does the Military Need a Formal Invitation to Reign in “Cowboy” Civilian Contractors?

62 Fla. L. Rev. 519 (2010) |   |   |   | INTRODUCTION :: Alaa “Alex” Mohammad Ali never set out to make history. He just needed a job. Nevertheless, on February 23, 2008, Ali took his first step toward making history, and did it with blood on his hands. What began as an […]

Lawrence A. Cunningham, Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions

62 Fla. L. Rev. 667 (2010) | | | | CASE COMMENT ::This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and prescribe using […]

Dale E. Ho, Silent at Sentencing: Waiver Doctrine and a Capital Defendant's Right to Present Migitating Evidence After Schriro v. Landrigan

62 Fla. L. Rev. 763 (2010) | | | | CASE COMMENT ::The consideration of mitigating evidence-evidence that weighs against the imposition of the death penalty in a capital defendant’s individual case-has been deemed a “constitutionally indispensable” feature of a valid capital sentencing scheme. And yet, Jeffrey Landrigan, like many capital defendants, was sentenced to […]

Brent Steinberg, The Graves Amendment: Putting to Death Florida's Strict Vicarious Liability Law

62 Fla. L. Rev. 795 (2010) | | | | CASE COMMENT :: Ethan Ruby, a twenty-five-year-old Wall Street trader and former college athlete, was crossing Delancy Street in Manhattan when the driver of a Budget rental vehicle ran a red light. The Budget vehicle struck a van, which subsequently plowed into Ruby, hurling him […]

John C. Jeffries Jr., What's Wrong with Qualified Immunity

62 Fla. L. Rev. 851 (2010) | | | | INTRODUCTION :: Qualified immunity protects government officers from damages liability for violating constitutional rights. It does not constrain injunctions, exclusion of evidence, or the defensive assertion of rights in government enforcement proceedings. Nor does it apply to all damage actions. Officers performing legislative, judicial, and […]

R. Benjamin Lingle, The Constitutionality and Economic Impacts of Federal Jurisdiction of Wetlands: The Clean Water Restoration Act of 2009

62 Fla. L. Rev. 1091 (2010) | | | | INTRODUCTION :: Imagine there is a river, and a half mile to the river’s east is a twenty-acre wetland. To the east of the wetland is a neighborhood. The river’s eastern bank is seven feet above the mean water line, and the western bank is […]

Benjamin H. Barton, Against Civil Gideon (and for Pro Se Court Reform)

62 Fla. L. Rev. 1227 (2010)| | | | INTRODUCTION :: “Civil Gideon” is a short-hand name for a concept that has been the white whale of American poverty law for the last forty years-a constitutional civil guarantee to a lawyer to match the criminal guarantee from Gideon v. Wainwright. This Article argues that the […]

Lydia Pallas Loren, Renegotiating the Copyright Deal in the Shadow of the “Inalienable” Right to Terminate

62 Fla. L. Rev. 1329 (2010)| | | | ABSTRACT :: Few people realize that many contracts that purport to transfer “all right, title and interest” in a copyright can be terminated by the author of the copyrighted work after thirty-five years (in some cases), after fifty-six years (in other cases), and sometimes even after […]

Jeff Fabian, Don't Tase Me Bro!: A Comprehensive Analysis of the Laws Governing Taser Use by Law Enforcement

62 Fla. L. Rev. 763 (2010) | | | | INTRODUCTION ::Financially destitute and homeless, a man began to sob after receiving a speeding ticket. When the man refused to sign the ticket, the ticketing officer arrested the man. The officer placed the man in handcuffs and began leading him to the patrol car. As […]

Usha Rodrigues, From Loyalty to Conflict: Addressing Fiduciary Duty at the Officer Level

61 Fla. L. Rev. 1 (2009) | | | | ABSTRACT :: Conflicts of interest are the quintessential agency cost-the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interest. This ignorance […]

Charles Short, Guilt by Machine: The Problem of Source Code Discovery in Florida DUI Prosecutions

61 Fla. L. Rev. 177 (2009) | | | | ABSTRACT :: Breath testing results stand at the core of most driving under the influence (DUI) prosecutions. Florida law provides that an individual is guilty of driving under the influence when he drives, or is in actual physical control of a vehicle, while under the […]

Calvin Massey, State Standing after Massachusetts v. EPA

61 Fla. L. Rev. 249 (2009) | | | | INTRODUCTION :: By granting states “special solicitude in our standing analysis,” the Supreme Court in Massachusetts v. EPA created substantial new uncertainty in the law of standing. At least since Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. Article […]

Dante P. Trevisani, Passenger Standing To Challenge Searches And Seizures: A Distinction without a Constitutional Difference

61 Fla. L. Rev. 329 (2009) | | | | INTRODUCTION :: On November 27, 2001, Deputy Sheriff Robert Brokenbrough noticed a Buick with expired registration tags. After verifying from the police dispatcher that the application for renewal tags was being processed, and therefore the Buick was not in violation of any traffic laws, he […]

Patricia Alten, Gina: A Genetic Information Nondiscrimination Solution in Search of a Problem

61 Fla. L. Rev. 379 (2009) | | | | ABSTRACT :: “Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To address the potential use of […]

Dayna B. Royal, Take Your Gun to Work and Leave It in The Parking Lot: Why The OSH Act Does Not Preempt State Guns-At-Work Laws

61 Fla. L. Rev. 475 (2009) | | | | INTRODUCTION :: Two robbers entered an Alabama restaurant and forced customers and employees into a walk-in refrigerator at gunpoint. Fortunately, one of the customers, legally armed with his own pistol, shot the robbers before any hostage was injured. In New York City, a fifty-six year-old […]

David A. Anderson, Confidential Sources Reconsidered

61 Fla. L. Rev. 883 (2009) | | | | INTRODUCTION :: For fifty years, the courts have debated whether the First Amendment guarantee of freedom of the press requires that journalists be allowed to protect confidential sources. Many state and federal courts have answered in the affirmative, creating a First Amendment “reporter’s privilege.” The […]

Lindsay M. Saxe, Politics versus Precision: Did the Miami-Dade School Board Violate the First Amendment when it Voted to Remove Vamos a Cuba! from its District libraries?: ACLU v. Miami-Dade County School Board, 557 F.3d 1177 (11th Cir. 2009)

61 Fla. L. Rev. 921 (2009) | | | | INTRODUCTION :: Juan Amador, a self-described political prisoner from Cuba, was outraged when he read the inaccurate portrayal of life in Cuba contained in Vamos a Cuba!, a book in his daughter’s elementary school library. Amador promptly requested that the school remove the book from […]

Kristen Rasmussen, Shedding (False) Light: How the Florida Supreme Court's Rejection of the Tort Falsely Implies Protection for Media Defendants: Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)

61 Fla. L. Rev. 911 (2009) | | | | INTRODUCTION :: Edith and Marty Rapp, a Jewish Florida couple, were married until Marty’s death in 2003. Bruce Rapp, Marty’s son and Edith’s stepson, worked for Jews for Jesus. Prior to Marty’s death, Bruce included the following account in a Jews for Jesus newsletter: I […]

Akhil Reed Amar, Bush, Gore, Florida, and the Constitution

61 Fla. L. Rev. 945 (2009) | | | | INTRODUCTION :: Ten years ago this week, Dunwody Lecturer Cass Sunstein stood at this podium and offered some thoughts about the then-recent impeachment of President Clinton. Professor Sunstein titled his remarks Lessons from a Debacle: From Impeachment to Reform. Today I shall share with you […]

Erwin Chemerinsky, The Meaning of Bush v. Gore: Thoughts on Professor Amar's Analysis

| | | | INTRODUCTION :: It is tempting to blame the United States Supreme Court’s decision in Bush v. Gore for the evils the Bush Administration inflicted on the nation. If only Al Gore had become president, there would not have been the disastrous war in Iraq or the enormous deficit-spending to fund it, […]

Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar

61 Fla. L. Rev. 979 (2009) | | | | INTRODUCTION :: Akhil Amar begins his impressive Dunwody Lecture by questioning whether there “are any new things left to say about the Bush-Gore episode.” 1 It is a legitimate question to ask, given the torrent of scholarship since the 2000 Florida debacle. In some ways, […]

Ellen D. Katz, From Bush v. Gore to Namudno: A Response to Professor Amar

61 Fla. L. Rev. 991 (2009) | | | | INTRODUCTION :: In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, […]

Nelson Lund, Bush v. Gore at The Dawning of the Age of Obama

61 Fla. L. Rev. 1001 (2009) | | | | INTRODUCTION :: As Akhil Amar reminds us, hundreds of law professors denounced the Bush v. Gore majority as propagandists who suppressed the facts and used their power “to act as political partisans, not judges of a court of law”; as he also notes, a few […]

Allison Sirica, A Great Gamble: Why Compromise Is the Best Bet to Resolve Florida's Indian Gaming Crisis

61 Fla. L. Rev. 1201 (2009) | | | | INTRODUCTION :: “Indian gaming is a national multi-billion dollar enterprise and growing.” Even in 2008, amidst an economic downturn, the revenues generated by the tribal gaming industry continued to show growth. In 2008 alone, Indian gaming generated $ 26.7 billion and accounted for a little […]

Emily Gold Waldman, Returning to Hazelwood's Core: A New Approach to Restrictions on School- Sponsored Speech

60 Fla. L. Rev. 63 (2008) | | | | INTRODUCTION :: Nearly twenty years ago in Hazelwood School District v. Kuhlmeier, the Supreme Court, in upholding the constitutionality of a public high school principal’s censorship of a student newspaper produced in a journalism class, held that “educators do not offend the First Amendment by […]

C. Douglas Floyd, In Honor of Walter O. Weyrauch: Three Faces of Supplemental Jurisdiction after the Demise of United Mine Workers V. Gibbs

60 Fla. L. Rev. 277 (2008) | | | | INTRODUCTION :: In United Mine Workers v. Gibbs, the Supreme Court rejected the narrow “cause of action” test announced in Hurn v. Oursler for what was then termed pendent-claim jurisdiction in favor of a broader “common nucleus of operative fact” standard. In subsequent cases, the […]

Alisa Smith & Michael J. Saks, In Honor of Walter O. Weyrauch: The Case for Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical Evidence

60 Fla. L. Rev. 441 (2008) | | | | ABSTRACT :: After 700 years of common-law history and nearly 200 years of constitutional history, the Supreme Court concluded that the constitutionally permissible minimum jury size could not be inferred from the language or the history of the Constitution. The answer, said the Court in […]

Scott J. Kennelly, In Honor of Walter O. Weyrauch: Florida's Eminent Domain Overhaul: Creating More Problems than it Solved

60 Fla. L. Rev. 471 (2008) | | | | INTRODUCTION :: A knock at your front door wakes you. Blurry-eyed, you open your door to a government official who tells you that the city would like to purchase your home for a price slightly greater than fair market value. According to the official, most […]

Michael J. Hooi, Substantive Due Process: Sex Toys after Lawrence Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007)

60 Fla. L. Rev. 507 (2008) | | | | TEXT :: Appellants filed suit in the U.S. District Court for the Northern District of Alabama to enjoin the enforcement of an Alabama statute that prohibits the commercial distribution of sex toys. Appellants claimed that the statute unconstitutionally burdened their rights to privacy and personal […]

Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process

60 Fla. L. Rev. 519 (2008) | | | | ABSTRACT :: Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures […]

Stephen A. Higginson, Constitutional Advocacy Explains Constitutional Outcomes

60 Fla. L. Rev. 857 (2008) | | | | INTRODUCTION :: In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment a justiciable issue, exclaimed that “the motto of the Supreme Court of Tennessee is Fiat justicia ruat […]

Simon A. Rodell, False Statements v. Free Debate: Is the First Amendment a License to Lie in Elections?

60 Fla. L. Rev. 947 (2008) | | | | TEXT :: Rickert v. Public Disclosure Commission, 168 P.3d 826 (Wash. 2007) The petitioner, Marilou Rickert, ran as a Green Party candidate for a seat in the Washington state senate. During her campaign, Rickert distributed a brochure that falsely represented the voting record of her […]

Giannina Marin, Possession of Child Pornography: Should You be Convicted When the Computer Cache Does the Saving for You?

60 Fla. L. Rev. 1205 (2008) | | | | INTRODUCTION :: “For years, defense lawyers have argued the ‘young and stupid’ semi-defense for their youthful clients. Now, we can have the ‘I didn’t know it was on the hard drive’ objection for the unsophisticated computer user in child pornography cases-or at least they can […]

Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public Places

59 Fla. L. Rev. 1 (2007) | | | | INTRODUCTION :: It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and “cyber-places” like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it […]

Mary-Rose Papandrea, Student Speech Rights in the Digital Age

60 Fla. L. Rev. 1027 (2008) | | | | ABSTRACT :: For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question […]

Emily S. Wilbanks, Constitutional Law: Speaking with your Mouth Shut? Exploring the Outer Limits of First Amendment Protection in The Context of Military Recruiting on Law School Campuses

59 Fla. L. Rev. 437 (2007) | | | | TEXT :: In response to the increasing refusal of law schools and other institutions of higher education to allow the U.S. military to engage in on-campus recruiting, Congress passed the Solomon Amendment. The Solomon Amendment mandates a denial of federal funds to any school that […]

Dustin G. Hall, Constitutional Law: What to Do When a State Fails to Take Notice that its Notice has Failed?

59 Fla. L. Rev. 453 (2007) | | | | TEXT :: After Petitioner paid off his mortgage, his annual property taxes went unpaid. Respondent, Commissioner of State Lands, subsequently certified Petitioner’s property as delinquent. Under the applicable state statute, Respondent sent, via certified mail, a notice of delinquency to Petitioner’s property. The notice indicated […]

Lisa A. Mattern, Constitutional Law: Knock-And-Announce Violations and the Purposeful Enforcement of the Exclusionary Rule

59 Fla. L. Rev. 465 (2007) | | | | TEXT :: Officers obtained a warrant to search for drugs and firearms in Petitioner’s home. Although the officers announced their presence, they waited only three to five seconds before entering the unlocked residence. Once inside, they discovered large quantities of drugs and a loaded firearm. […]

Benjamin Robinson, Constitutional Law: Suppressing the Exclusionary Rule

59 Fla. L. Rev. 475 (2007) | | | | TEXT :: Police obtained a warrant to search Petitioner’s home and, after announcing their presence, waited only a short time before they entered and discovered drugs and a loaded gun. The State charged Petitioner with unlawful drug and firearm possession. Petitioner moved to suppress all […]

Michael Nardella, Knowing When to Stop: Is the Punctuation of the Constitution Based on Sound or Sense?

59 Fla. L. Rev. 667 (2007) | | | | INTRODUCTION :: Take another look at the Fifth Amendment. Look carefully. If you read it with an eye toward punctuation, you will notice that the Amendment itself is one long and complex sentence; you will notice that it contains a number of restrictions on governmental […]

Jason Marques, To Bear a Cross: The Establishment Clause, Historic Preservation, and Eminent Domain Intersect at the Mt. Soledad Veterans Memorial

59 Fla. L. Rev. 829 (2007) | | | | INTRODUCTION :: High above San Diego, a solitary Latin cross casts its shadow over the picturesque coastline of Southern California. The cross, a towering icon of concrete and faith, is encircled by several massive walls of granite into which thousands of names are meticulously carved. […]

Jessica Furst, Money and Politics: Will Expenditure Limits Take Candidates out of the Money Race And Put Them Back in the Office?

59 Fla. L. Rev. 873 (2007) | | | | INTRODUCTION :: On March 4, 1897, William McKinley capped a prominent career in public service when he became America’s twenty-fifth President. Perhaps most onlookers attributed the victory to McKinley’s character, intellect, or years of political experience. However, those watching a bit closer may have correctly […]

Alex B. Long, The Troublemaker's Friend: Retaliation Against Third Parties and the Right of Association in the Workplace

59 Fla. L. Rev. 931 (2007) | | | | INTRODUCTION :: “To retaliate against a man by hurting a member of his family is an ancient method of revenge, and is not unknown in the field of labor relations.” NLRB v. Advertisers Manufacturing Co. Individuals who complain about workplace discrimination are frequently labeled as […]

Sandra Day O'Connor, Remarks on Judicial Independence

58 Fla. L. Rev. 1 (2006) | | | | TEXT :: Dedication of the Lawton Chiles Legal Information Center, University of Florida, Levin College of Law, Friday, September 9, 2005 It is a great pleasure to be here at the University of Florida to dedicate the Lawton Chiles Legal Information Center. Your new building […]

Michael Richard Dimino, Sr., Counter-Majoritarian Power and Judges' Political Speech

58 Fla. L. Rev. 53 (2006) | | | | INTRODUCTION :: Judges and judicial candidates are regularly restricted in their political speech and association by two categories of ethical canons that have only recently come under constitutional examination: those that restrict the ways judges conduct their own campaigns, and those that restrict judges’ participation […]

Jessica Gavrich, Constitutional Law: Judicial Oversights-Inconsistency in Supreme Court Establishment Clause Jurisprudence

58 Fla. L. Rev. 437 (2006) | | | | TEXT :: Texas State Capitol grounds contain a display of seventeen monuments and twenty- one historical markers. Amidst the monuments, Texas state officials erected a six-foot high and three and one-half foot wide structure inscribed with the Ten Commandments. The State accepted the monument from […]

Brooke R. Hardy, Criminal Procedure: Finding the Needle-Toward a More Stringent Standard for Effective Assistance of Counsel

58 Fla. L. Rev. 449 (2006) | | | | TEXT :: Petitioner was convicted by a jury of, among other offenses, brutally murdering a local barkeeper. At the sentencing phase of the bifurcated proceeding, Petitioner’s counsel presented the brief testimony of only five mitigation witnesses. Balancing the evidence, the jury found three aggravating factors […]

Robert Michael Kline, Constitutional Law: Is There a Protected Interest in Protection (Or Are Court Orders Merely Suggestions)?

58 Fla. L. Rev. 459 (2006) | | | | TEXT :: Respondent’s husband abducted his three little girls, ages 10, 8, and 7, and shot each of them in the head at close range. He committed this abhorrent and tragic triple murder despite the fact that Respondent had obtained a restraining order commanding him […]

Steven J. Wernick, Constitutional Law: Elimination of the Juvenile Death Penalty-Substituting Moral Judgment for a True National Consensus

58 Fla. L. Rev. 471 (2006) | | | | TEXT :: Respondent was convicted of first-degree murder for the torturous abduction and drowning of a woman and was sentenced to death upon the recommendation of the jury. Respondent committed these brutal acts as a seventeen year-old high school student. Despite his age, Respondent was […]

J. Richard Broughton, The Second Death Of Capital Punishment

58 Fla. L. Rev. 639 (2006) | | | | INTRODUCTION :: Political life is sometimes tragic. As a conservative instrument for safeguarding the government’s obligation and ability to control the governed (which, as Madison reminds us, is a prerequisite for the exercise of self-control on the part of the government), and for preserving tolerable […]

Jessica C. Furst, Election Law: "Three's a Crowd": Supreme Court Protection for the Two-Party System

58 Fla. L. Rev. 921 (2006) | | | | TEXT :: Oklahoma’s semiclosed primary law permits a political party to invite voters registered as Independent to vote in that party’s primary election. The Libertarian Party of Oklahoma (LPO) notified state election officials of its intent to open its primary to all voters, regardless of […]

Lila Haughey, Florida Constitutional Law: Closing the Door to Opportunity: The Florida Supreme Court's Analysis of Uniformity in the Context of Article IX, Section 1

58 Fla. L. Rev. 945 (2006) | | | | TEXT :: The Florida legislature enacted the Opportunity Scholarship Program (OSP) in 2002 to improve the quality of education in Florida, allowing students at failing public schools to either attend another public school or use state funds to enroll at a private school. Florida public […]

Patrick M. Garry, Religious Freedom Deserves more than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion

57 Fla. L. Rev. 1 (2005) | | | | INTRODUCTION :: Some of the earliest American colonies began as havens for religious believers. Religious institutions operated nearly the entire educational system in eighteenth-century America. The first liberty mentioned in the Bill of Rights is religious freedom. During the eighteenth century, Congress consistently permitted the […]

O. Carter Snead, Dynamic Complementarity: Terri's Law and Separation of Powers Principles in the End-Of-Life Context

57 Fla. L. Rev. 53 (2005) | | | | INTRODUCTION :: The bitter dispute over the proper treatment of Theresa Marie Schiavo-a severely brain damaged woman, unable to communicate and with no living will or advance directive-has garnered enormous attention in the media, both national and international. What began as a heated disagreement between […]

Charles T. Douglas, Jr., Compensating for Canker: A Sore Subject for Florida's Citrus Growers: Haire v. Florida Department of Agriculture & Consumer Services, 870 So. 2d 774 (Fla. 2004)

57 Fla. L. Rev. 421 (2005) | | | TEXT :: Florida’s citrus canker law (the Canker Law) requires the State to destroy healthy-appearing citrus trees that are within a 1900-foot radius of an infected tree. The Florida Legislature enacted this eradication program to thwart the spread of canker and to protect Florida’s second largest […]

Peter Koclanes, Unreasonable Seizure: "Stop and Identify" Statutes Create an Illusion of Safety by Sacrificing Real Privacy: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 431 (2005) | | | | TEXT :: In the course of a lawful stop, police asked Petitioner, Larry Hiibel, to identify himself, a demand permissible under Nevada’s “stop and identify” statute. After refusing to give his name, Hiibel was arrested and subsequently found guilty of violating the “stop and identify” […]

William R. Snyder, Jr., Slipping Down the Slope of Probable Cause: An Unreasonable Exception to What Was Once a Reasonable Rule: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 445 (2005) | | | | TEXT :: Upon receiving a call reporting possible domestic violence, a sheriff’s deputy in Humboldt County, Nevada detained Petitioner under the authority of a state statute allowing an officer to “stop and identify” a person suspected of criminal behavior. During the course of the detention, […]

Diane J. Zelmer, Constitutional Law: Convicting Detainees for Refusing to Answer Law Enforcement's Commonsense Inquiries Makes no Commonsense: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 459 (2005) | | | | TEXT :: While investigating an assault report, a police officer observed a silver and red GMC truck parked on the roadside with skid marks behind it. Petitioner, who appeared intoxicated, stood outside the truck, and a young woman sat inside the truck. Threatening arrest, the […]

Edward C. Lyons, In Incognito -The Principle of Double Effect in American Constitutional Law

57 Fla. L. Rev. 469 (2005) | | | | INTRODUCTION :: Relying explicitly on the “principle of double effect” for the first time in American law, the Supreme Court in Vacco v. Quill -a decision noteworthy if for no other reason than for that very reliance-rejected an equal protection claim asserting a right to […]

Alan E. Garfield, Protecting Children from Speech

57 Fla. L. Rev. 565 (2005) | | | | INTRODUCTION :: The notion that children need to be sheltered from inappropriate speech long predates Janet Jackson’s “wardrobe malfunction” or Bono’s expletive-enhanced acceptance of a Golden Globe. Plato expressed concern about youths’ impressionable minds 2300 years ago, stressing that the tales the “young first hear […]

Justin Smith, Post-Conviction Relief under Florida Law: The Undue Process of the Evolutionary Refinement

57 Fla. L. Rev. 653 (2005) | | | | INTRODUCTION :: “We might go further and say that even those laws which have been written down are best regarded as not unchangeable.” Aristotle “[T]hey are . . . promulgated established laws, not to be varied in particular cases, but to have one rule . […]

Heidi Kitrosser, Containing Unprotected Speech

57 Fla. L. Rev. 843 (2005) | | | | INTRODUCTION :: The Supreme Court long has deemed a few categories of speech so harmful and so lacking in value as to be unworthy of First Amendment protection. Under this approach, which this Article calls categorization doctrine, legislatures may regulate-even ban-unprotected speech categories in their […]

Jeffrey A. Bekiares, Constitutional Law: Ratifying Suspicionless Canine Sniffs: Dog Days on the Highways

57 Fla. L. Rev. 963 (2005) | | | | TEXT :: Respondent, a motorist on an Illinois highway, was arrested and charged with one count of cannabis trafficking in contravention of chapter 720, section 550/5.1(a) of the Illinois Code. An Illinois State trooper pulled Respondent over for traveling 6 miles per hour in excess […]

Cary B. Davis, The Commerce Clause: Border Crossing + Church Burning = Interstate Commerce (A Formula for Federalizing Common Law State Crimes)

57 Fla. L. Rev. 975 (2005) | | | | TEXT :: Respondent, a practicing Luciferian from Indiana, drove his van south to Georgia where he set fire to five churches. One of the arsons resulted in the death of a volunteer firefighter. Respondent pleaded guilty in federal court to five counts of church arson […]

Michelle Reiss Drab, Constitutional Law: Fact or Factor: The Supreme Court Eliminates Sentencing Factors and the Federal Sentencing Guidelines

57 Fla. L. Rev. 987 (2005) | | | | TEXT :: A jury convicted Respondent Booker of possession with intent to distribute at least fifty grams of cocaine, an offense carrying a sentence of 210 to 262 months in prison according to the Federal Sentencing Guidelines (the “Guidelines”). At a later sentencing hearing, the […]

Daniel Ryan Koslosky, Constitutional Law: Predictability As Fairness And The Possible Return To Federal Indeterminate Sentencing

57 Fla. L. Rev. 999 (2005) | | | | TEXT :: Respondent was convicted by a jury of possession with intent to distribute at least fifty grams of crack cocaine. During postconviction sentencing, the district court judge found, by a preponderance of evidence, that Respondent possessed an additional 566 grams of crack cocaine and […]

William N. Eskridge, Jr, Dunwody Distinguised Lecture in Law: Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion

57 Fla. L. Rev. 1011 (2005) | | | | TEXT :: The Supreme Court ruled in Lawrence v. Texas that states could not constitutionally criminalize private oral or anal sex between consenting adults. How far does the decision sweep? Is it limited to its facts, with no broader implications for constitutional law, as the […]

Christopher Wolfe, Moving Beyond Rhetoric

57 Fla. L. Rev. 1065 (2005) | | | | TEXT :: William Eskridge’s Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion is an unusually rhetorical piece. At times it appears that Eskridge thinks that if he characterizes his opponents’ position as one of “disgust” and fear of “contagion” often enough […]

Kevin M. Shuler, Is the Endangered Species Act Endangered in the Age of Strict Federalism? A Florida Perspective on the Recent Commerce Clause Challenges to the ESA

57 Fla. L. Rev. 1135 (2005) | | | | INTRODUCTION :: Suppose that a ten-million-dollar development project in Levy County was suddenly stymied by the discovery of a nest of Florida salt marsh voles. Such a delay could endanger a project bringing much-needed jobs to one of Florida’s poorest counties. Despite existing in only […]

Robert C.L. Moffat, "Not the Law's Business:" The Politics of Tolerance and the Enforcement of Morality

57 Fla. L. Rev. 1097 (2005) | | | | TEXT :: In order to appreciate the arguments offered by Professor Eskridge in his Dunwody Lecture, I think a review of the relevant entries in the ongoing discussion regarding the enforcement of morality would help us understand the context in which that debate takes place. […]

Diane Lourdes Dick, Constitutional Law: Reaffirming Every Floridian's Broad and Fundamental Right to Privacy

56 Fla. L. Rev. 447 (2004) | | | | TEXT :: In 1999, the Florida Legislature passed the Parental Notice of Abortion Act (the Act), which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option […]

Blake J. Delaney, A Cruel and Unusual Application of The Proportionality Principle in Eighth Amendment Analysis

56 Fla. L. Rev. 459 (2004) | | | | TEXT :: Petitioner, Gary Ewing, while on parole, stole three golf clubs valued at approximately $ 1200 from a pro shop. Respondent, the State of California, charged Petitioner with felony grand theft of personal property. The Los Angeles County Superior Court convicted Petitioner of the […]

Janelle A. Weber, The Spending Clause: Funding a Filth-Free Internet or Filtering out the First Amendment?

56 Fla. L. Rev. 471 (2004) | | | | TEXT :: The Children’s Internet Protection Act (CIPA) sets conditions on public libraries’ receipt of federal financial assistance for Internet access. Under CIPA, libraries must install filters on all of their Internet-connected computers to help block obscene and pornographic images and prevent minors from accessing […]

David Crump, The Narrow Tailoring Issue in The Affirmative Action Cases: Reconsidering the Supreme Court's Approval in Gratz and Grutter of Race-Based Decision-Making by Individualized Discretion

56 Fla. L. Rev. 483 (2004) | | | | INTRODUCTION :: The Supreme Court’s doctrine known as strict scrutiny is divided into two elements. First, there is the requirement that a State identify a “compelling governmental interest” that supports the state’s use of race as a factor. Second, and just as important, there is […]

Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887

56 Fla. L. Rev. 541 (2004) | | | | INTRODUCTION :: Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. It was Congress’s first task when a quorum appeared in the nation’s new legislature on April 6, 1789. It has happened every four years […]

Dennis J. Shields, A Response to Professor Crump's Narrow Tailoring Analysis of Grutter: Does It Matter How Many Angels Can Dance on the Head of a Pin?

56 Fla. L. Rev. 761 (2004) | | | | INTRODUCTION :: On occasion the Supreme Court is faced with a conflict between important public values. The two cases contesting race-conscious admissions decision-making at the University of Michigan placed the Court in just such a circumstance. The plaintiffs represented the powerful principle of color-blindness in […]

Daniel J. Steinbock, National Identity Cards: Fourth and Fifth Amendment Issues

56 Fla. L. Rev. 697 (2004) | | | | INTRODUCTION :: In the frenzied days and weeks following September 11, 2001, many observers called for serious consideration of a national identity system, the centerpiece of which would be some form of national identity card. Such a system was seen mainly as a tool against […]

Monica Vila, Constitutional Law: Thou Shalt Not Establish Religion

56 Fla. L. Rev. 819 (2004) | | | | INTRODUCTION :: Appellant, the Chief Justice of the Alabama Supreme Court, erected a two-and- one-half ton monument of the Ten Commandments in the rotunda of the Alabama State Judicial Building. The monument, which Appellant installed to reflect the moral foundation of law, was also engraved […]

Stephen B. Presser, A Conservative Comment on Professor Crump

56 Fla. L. Rev. 789 (2004) | | | | INTRODUCTION :: My assignment was to comment on Professor Crump’s article from a conservative perspective, to complement the response to his article from Dean Dennis Shields, who had been instrumental in administering the University of Michigan School of Law’s affirmative action policies approved in Grutter […]

Marisa Lopez, Constitutional Law: Lowering the Standard of Strict Scrutiny

56 Fla. L. Rev. 841 (2004) | | | | INTRODUCTION :: Respondents adopted a law school admissions policy that considered, among other factors, applicants’ race and ethnicity. The admissions policy was designed to achieve the educational benefits of a diverse student body. As part of this policy, admissions officers often considered daily reports that […]

Robert A. Caplen, Constitutional Law: Forecasting the Sunset of Racial Preferences in Higher Education while Broadening their Horizons

56 Fla. L. Rev. 853 (2004) | | | | INTRODUCTION :: Respondents implemented admissions policies designed to select an academically qualified and diverse student body with substantial promise for success within the legal profession and filed a lawsuit alleging discriminated against her on the basis of race in violation of the Fourteenth Amendment held […]

David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures

56 Fla. L. Rev. 1051 (2004) | | | | INTRODUCTION :: Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities. In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement […]