104th Congress Document
SENATE
2d Session No. 104-14
________________________________________________________________________
THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA
ANALYSIS AND INTERPRETATION
__________
1996 SUPPLEMENT
ANALYSIS OF CASES DECIDED BY THE SUPREME
COURT OF THE UNITED STATES TO JULY 1, 1996
Prepared by the
Congressional Research Service
Library of Congress
Johnny H. Killian
George A. Costello
Kenneth R. Thomas
Editors
U.S. GOVERNMENT PRINTING OFFICE
22-725CC WASHINGTON : 1997
________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Washington, DC 20402
[[Page 1]]
ARTICLE I
Delegation
[P. 78, add to text following n.79:]
The infirm state of the nondelegation doctrine was
demonstrated further in Loving v. United States. \1\ Article
118 of the Uniform Code of Military Justice (UCMJ) \2\
provides for the death penalty for premedicated murder and
felony murder for persons subject to the Act, but the
statute does not comport with the Court's capital punishment
jurisprudence, which requires the death sentence to be
cabined by standards so that the sentencing authority is
constrained to narrow the class of convicted persons to be
so sentenced and to justify the individual imposition of the
sentence. \3\ However, the President in 1984 had promulgated
standards that purported to supply the constitutional
validity the UCMJ needed. \4\
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\1\ 116 S. Ct. 1737 (1996). The decision was
unanimous in result, but there were several concurrences
reflecting some differences among the Justices.
\2\ 10 U.S.C. Sec. Sec. 918(1), (4).
\3\ The Court assumed the applicability of Furman v.
Georgia, 408 U.S. 238 (1972), and its progeny, to the
military, 116 S. Ct. at 1742, a point on which Justice
Thomas disagreed, id. at 1753.
\4\ Rule for Courts-Martial; see 116 S. Ct. at 1740,
1741-42.
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The Court held that Congress could delegate to the
President the authority to prescribe standards for the
imposition of the death penalty--Congress' power under
Article I, Sec. 8, cl. 14, is not exclusive--and that
Congress had done so in the UCMJ by providing that the
punishment imposed by a court-martial may not exceed ``such
limits as the President may prescribe.'' \5\ Acknowledging
that a delegation must contain some ``intelligible
principle'' to guide the recipient of the delegation, the
Court nonetheless held this not to be true when the
delegation was made to the President in his role as
Commander-in-Chief. ``The same limitations on delegation do
not apply'' if the entity authorized to exercise delegated
authority itself possesses independent authority over the
subject matter. The President's responsibilities as
Commander-in-Chief require him to superintend the military,
including the courts-martial, and thus the delegated duty is
interlinked with duties already assigned the President by
the Constitution. \6\
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\5\ 10 U.S.C. Sec. Sec. 818, 836(a), 856.
\6\ 116 S. Ct. at 1750-51.
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In the course of the opinion, the Court
distinguished between its usual separation-of-powers
doctrine--emphasizing arrogation of power by a branch and
impairment of another branch's ability to carry out its
functions--and the delegation doctrine, ``another
[[Page 2]]
branch of our separation of powers jurisdiction,'' which is
informed not by the arrogation and impairment analyses but
solely by the provision of standards, \7\ thus confirming
what has long been evident that the delegation doctrine is
unmoored to separation-of-powers principles altogether.
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\7\ Id. at 1743-44.
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Qualifications of Members of Congress
[P. 111, add to n.297:]
Powell's continuing validity was affirmed in U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the
Court in its holding that the qualifications set out in the
Constitution are exclusive and may not be added to by either
Congress or the States, id. at 787-98, and by the dissent,
who would hold that Congress, for different reasons, could
not add to qualifications, although the States could. Id. at
875-76.
[P. 114, add to text following n.312:]
The long-debated issue whether the States could add
to the qualifications that the Constitution prescribed for
Senators and Representations was finally resolved, by a
surprisingly close vote, in U.S. Term Limits, Inc. v.
Thornton. \8\ Arkansas, along with twenty-two other States,
all but two by citizen initiatives, had imposed maximum
numbers of terms that Members of Congress could serve. In
this case, the Court held that the Constitution's
qualifications clauses \9\ establish exclusive
qualifications for Members that may not be added to either
by Congress or the States. The four-Justice dissent argued
that while Congress had no power to increase qualifications,
the States did.
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\8\ 514 U.S. 779 (1995). The majority was composed
of Justice Stevens (writing the opinion of the Court) and
Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting
were Justice Thomas (writing the opinion) and Chief Justice
Rehnquist and Justices O'Connor and Scalia. Id. at 845.
\9\ Article I, Sec. 2, cl. 2, provides that a person
may qualify as a Representative if she is at least 25 years
old, has been a United States citizen for at least 7 years,
and is an inhabitant, at the time of the election, of the
State in which she is chosen. The qualifications established
for Senators, Article I, Sec. 3, cl. 3, are an age of 30
years, nine years citizenship, and an inhabitant of the
State.
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Richly embellished with disputatious arguments about
the text of the Constitution, the history of its drafting
and ratification, and the practices of Congress and the
States in the early years of the United States, the actual
determination of the Court as controverted by the dissent
was much more over founding principles than more ordinary
constitutional interpretation. \10\
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\10\ See Sullivan, Dueling Sovereignties: U.S. Term
Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
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Thus, the Court and the dissent drew different
conclusions from the text of the qualifications clauses and
the other clauses re-
[[Page 3]]
specting the elections of Members of Congress; the Court and
the dissent reached different conclusions after a minute
examination of the records of the Convention respecting the
drafting of these clauses and the ratification debates; and
the Court and the dissent were far apart on the meaning of
the practices in the States in legislating qualifications
and election laws and in Congress in deciding election
contests based on qualifications disputes.
A default principle relied on by both Court and
dissent, given the arguments drawn from text, creation, and
practice, had to do with the fundamental principle at the
foundation of the Constitution's founding. In the dissent's
view, the Constitution was the result of the resolution of
the peoples of the separate States to create the National
Government. The conclusion to be drawn from this was that
the peoples in the States agreed to surrender powers
expressly forbidden them and to surrender those limited
powers that they had delegated to the Federal Government
expressly or by necessary implication. They retained all
other powers and still retained them. Thus, ``where the
Constitution is silent about the exercise of a particular
power--that is, where the Constitution does not speak either
expressly or by necessary implication--the Federal
Government lacks that power and the States enjoy it.'' \11\
The constitution's silence about the States being limited
meant that the States could legislate additional
qualifications.
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\11\ 514 U.S. at 848 (Justice Thomas dissenting).
See generally id. at 846-65.
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Radically different were the views of the majority
of the Court. After the adoption of the Constitution, the
States had two kinds of powers: powers that they had before
the founding and that were reserved to them. The States
could have no reserved powers with respect to the Federal
Government. ``As Justice Story recognized, `the states can
exercise no powers whatsoever, which exclusively spring out
of the existence of the national government, which the
constitution does not delegate to them. . . . No state can
say, that it has reserved, what it never possessed.' '' \12\
The States could not before the founding have possessed
powers to legislate respecting the Federal Government, and
since the Constitution did not delegate to the States the
power to prescribe qualifications for Members of Congress,
the States did not have it. \13\
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\12\ Id. at 802.
\13\ Id. at 798-805. And see id. at 838-45 (Justice
Kennedy concurring).
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Evidently, the opinions in this case reflect more
than a decision on this particular dispute. They rather
represent conflicting philosophies within the Court
respecting the scope of national power in the context of the
States, an issue at the core of many controversies today.
[[Page 4]]
[P. 115, add to n.317:]
Another census controversy was resolved in Wisconsin v.
City of New York, 116 S. Ct. 1091 (1996), in which the Court
held that the decision of the Secretary of Commerce not to
conduct a post-enumeration survey and statistical adjustment
for an undercount in the 1990 Census was reasonable and
within the bounds of discretion conferred by the
Constitution and statute.
Commerce Clause
[P. 207, add to text following n.820:]
For the first time in almost sixty years, \14\ the
Court invalidated a federal law as exceeding Congress'
authority under the commerce clause. \15\ The statute was a
provision making it a federal offense to possess a firearm
within 1,000 feet of a school. \16\ The Court reviewed the
doctrinal development of the commerce clause, especially the
effects and aggregation tests, and reaffirmed that it is the
Court's responsibility to decide whether a rational basis
exists for concluding that a regulated activity sufficiently
affects interstate commerce when a law is challenged. \17\
The Court identified three broad categories of activity that
Congress may regulate under its commerce power. ``First,
Congress may regulate the use of the channels of interstate
commerce. . . . Second, Congress is empowered to regulate
and protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the
threat may come only from intrastate activities. . . .
Finally, Congress' commerce authority includes the power to
regulate those activities having a substantial relation to
interstate commerce, . . . i.e., those activities that
substantially affect interstate commerce.'' \18\
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\14\ Carter v. Carter Coal Co., 298 U.S. 238 (1936).
\15\ United States v. Lopez, 514 U.S. 549 (1995).
The Court was divided 5-to-4, with Chief Justice Rehnquist
writing the opinion of the Court, joined by Justices
O'Connor, Scalia, Kennedy, and Thomas, with dissents by
Justices Stevens, Souter, Breyer, and Ginsburg.
\16\ 18 U.S.C. Sec. 922(q)(1)(A). Congress
subsequently amended the section to make the offense
jurisdictionally turn on possession of ``a firearm that has
moved in or that otherwise affects interstate or foreign
commerce.'' Pub. L. 104-208, 110 Stat. 3009-370.
\17\ 514 U.S. at 556-57, 559.
\18\ Id. at 558-59.
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Clearly, said the Court, the criminalized activity
did not implicate the first two categories. \19\ As for the
third, the Court found an insufficient connection. First, a
wide variety of regulations of ``intrastate economic
activity'' has been sustained where an activity
substantially affects interstate commerce. But the statute
being challenged, the Court continued, was a criminal law
that had nothing to do with ``commerce'' or with ``any sort
of economic enter-
[[Page 5]]
prise.'' Therefore, it could not be sustained under
precedents ``upholding regulations of activities that arise
out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate
commerce.'' \20\ The provision did not contain a
``jurisdictional element which would ensure, through case-
by-case inquiry, that the firearm possession in question
affects interstate commerce.'' \21\ The existence of such a
section, the Court implied, would have saved the
constitutionality of the provision by requiring a showing of
some connection to commerce in each particular case.
Finally, the Court rejected the arguments of the Government
and of the dissent that there existed a sufficient
connection between the offense and interstate commerce. \22\
At base, the Court's concern was that accepting the
attenuated connection arguments presented would result in
the evisceration of federalism. ``Under the theories that
the Government presents . . . it is difficult to perceive
any limitation on federal power, even in areas such as
criminal law enforcement or education where States
historically have been sovereign. Thus, if we were to accept
the Government's arguments, we are hard pressed to posit any
activity by an individual that Congress is without power to
regulate.'' \23\
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\19\ Id. at 559.
\20\ Id. at 559-61.
\21\ Id. at 561.
\22\ Id. at 563-68.
\23\ Id. at 564.
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Whether this decision bespeaks a Court determination
to police more closely Congress' exercise of its commerce
power, so that it would be a noteworthy case, \24\ or
whether it is rather a ``warning shot'' across the bow of
Congress, urging more restraint in the exercise of power or
more care in the drafting of laws is unclear. Obviously,
Justice Thomas would undo much of modern commerce-clause
jurisprudence. He writes that the substantial-effects test
in conjunction with the aggregation principle betrays the
intent of the Framers and confers a ``police power'' on
Congress that it should not, indeed, does not, have. He
argues that the Court in a future case should undo what it
has done. \25\ On the other hand, Justice Kennedy, with whom
Justice O'Connor joined, argued that the Court should
generally not upset the stability of commerce-clause
jurisprudence and should not erode the ``essential
principles now in place respecting the congressional power
to regulate transactions of a commercial nature.'' But, when
a congressional enactment upsets the federal balance by
extending federal power into areas ``to which
[[Page 6]]
States lay claim by right of history and expertise,'' he
would have the Court intervene. \26\
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\24\ ``Not every epochal case has come in epochal
trappings.'' Id. at 615 (Justice Souter dissenting)
(wondering whether the case is only a misapplication of
established standards or is a veering in a new direction).
\25\ Id. at 584-602 (Justice Thomas concurring).
\26\ Id. at 568-83 (Justice Kennedy concurring).
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Thus, it seems unlikely that the Court, as now
constituted, will retreat from much of the existing law in
this area, but it may well be that, outside the area of
economic regulation, \27\ the Court will exert a restraining
hand to legislation such as that federalizing much state
criminal law enforcement.
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\27\ For a striking example, in the same Term as
Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.
265 (1995).
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Dormant Commerce Clause--State Regulation and Taxation
[Pp. 215-16, add to n.864:]
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60,
78 (1993) (Justice Scalia concurring) (reiterating view);
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175,
200-01 (1995) (Justice Scalia, with Justice Thomas joining)
(same).
[P. 223, add to n.907:]
Notice the Court's distinguishing of Central Greyhound
in Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S.
175, 188-91 (1995).
[P. 227, add to n.928:]
And see C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383, 391 (1994) (discrimination against interstate
commerce not preserved because local businesses also
suffer).
[P. 227, add to n.930:]
For the most recent case in this saga, see West Lynn
Creamery, Inc. v. Healy, 512 U.S. 186 (1994).
[P. 229, add to n.941:]
A recent application of the four-part Complete Auto
Transit test is Oklahoma Tax Comm'n v. Jefferson Lines,
Inc., 514 U.S. 175 (1995).
[P. 232, add to text following n.959:]
A deference to state taxing authority was evident in
a case in which the Court sustained a state sales tax on the
price of a bus ticket for travel that originated in the
State but terminated in another State. The tax was
unapportioned to reflect the intrastate travel and the
interstate travel. \28\ The tax in this case was different,
the Court held. The previous tax constituted a levy on gross
receipts, payable by the seller, whereas the present tax was
a sales
[[Page 7]]
tax, also assessed on gross receipts, but payable by the
buyer. The Oklahoma tax, the Court continued, was internally
consistent, since if every State imposed a tax on ticket
sales within the State for travel originating there, no sale
would be subject to more than one tax. The tax was also
externally consistent, the Court held, because it was a tax
on the sale of a service that took place in the State, not a
tax on the travel. \29\
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\28\ Indeed, there seemed to be a precedent squarely
on point. Central Greyhound Lines, Inc. v. Mealey, 334 U.S.
653 (1948). Struck down in that case was a state statute
that failed to apportion its taxation of interstate bus
ticket sales to reflect the distance traveled within the
State.
\29\ Oklahoma Tax Comm'n v. Jefferson Lines, Inc.,
514 U.S. 175 (1995). Indeed, the Court analogized the tax to
that in Goldberg v. Sweet, 488 U.S. 252 (1989), a tax on
interstate telephone services that originated in or
terminated in the State and that were billed to an in-state
address.
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However, the Court found discriminatory and thus
invalid a state intangibles tax on a fraction of the value
of corporate stock owned by state residents inversely
proportional to the corporation's exposure to the state
income tax. \30\
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\30\ Fulton Corp. v. Faulkner, 116 S. Ct. 848
(1996). The State had defended on the basis that the tax was
a ``compensatory'' one designed to make interstate commerce
bear a burden already borne by intrastate commerce. The
Court recognized the legitimacy of the defense, but it found
the tax to meet none of the three criteria for
classification as a valid compensatory tax. Id. at 855-60.
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[P. 232, add to n.961:]
And see Oregon Waste Systems v. Department of Envtl.
Quality, 511 U.S. 93 (1994) (surcharge on in-state disposal
of solid wastes that discriminates against companies
disposing of waste generated in other States invalid).
[P. 236, add to n.978:]
In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186
(1994), the Court held invalidly discriminatory against
interstate commerce a state milk pricing order, which
imposed an assessment on all milk sold by dealers to in-
state retailers, the entire assessment being distributed to
in-state dairy farmers despite the fact that about two-
thirds of the assessed milk was produced out of State. The
avowed purpose and undisputed effect of the provision was to
enable higher-cost in-state dairy farmers to compete with
lower-cost dairy farmers in other States.
[P. 236, add to text following n.980:]
Further extending the limitation of the clause on
waste disposal, \31\ the Court invalidated as a
discrimination against interstate commerce a local ``flow
control'' law, which required all solid waste within the
town to be processed at a designated transfer station before
leaving the municipality. \32\ The town's reason for the
restriction was its decision to have built a solid waste
transfer station by a private contractor, rather than with
public funds by the town. To make the arrangement appetizing
to the contractor, the town guaranteed it a minimum waste
flow, for which it could charge a fee significantly higher
than market rates. The guarantee
[[Page 8]]
was policed by the requirement that all solid waste
generated within the town be processed at the contractor's
station and that any person disposing of solid waste in any
other location would be penalized.
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\31\ See also Oregon Waste Systems, Inc. v.
Department of Envtl. Quality, 511 U.S. 93 (1994)
(discriminatory tax).
\32\ C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383 (1994).
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The Court analogized the constraint as a form of
economic protectionism, which bars out-of-state processors
from the business of treating the localities solid waste, by
hoarding a local resource for the benefit of local
businesses that perform the service. The town's goal of
revenue generation was not a local interest that could
justify the discrimination. Moreover, the town had other
means to accomplish this goal, such as subsidization of the
local facility through general taxes or municipal bonds. The
Court did not deal with, indeed, did not notice, the fact
that the local law conferred a governmentally-granted
monopoly, an exclusive franchise, indistinguishable from a
host of local monopolies at the state and local level. \33\
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\33\ See The Supreme Court, Leading Cases, 1993
Term, 108 Harv. L. Rev. 139, 149-59 (1994). Weight was given
to this consideration by Justice O'Connor, 511 U.S. at 401
(concurring) (local law an excessive burden on interstate
commerce), and by Justice Souter, id. at 410 (dissenting).
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[P. 241, add to n.1001:]
See also Itel Containers Int'l Corp. v. Huddleston, 507
U.S. 60 (1993) (sustaining state sales tax as applied to
lease of containers delivered within the State and used in
foreign commerce).
[P. 242, add to text following n.1004:]
Extending Container Corp., the Court in Barclays
Bank v. Franchise Tax Bd. of California, \34\ upheld the
State's worldwide-combined reporting method of determining
the corporate franchise tax owed by unitary multinational
corporations, as applied to a foreign corporation. The Court
determined that the tax easily satisfied three of the four-
part Complete Auto test--nexus, apportionment, and relation
to State's services--and concluded that the
nondiscrimination principle--perhaps violated by the letter
of the law--could be met by the discretion accorded state
officials. As for the two additional factors, as outlined in
Japan Lines, the Court pronounced itself satisfied. Multiple
taxation was not the inevitable result of the tax, and that
risk would not be avoided by the use of any reasonable
alternative. The tax, it was found, did not impair federal
uniformity nor prevent the Federal Government from speaking
with one voice in international trade. The result of the
case is that foreign corporations have less protection under
the neg-
[[Page 9]]
ative commerce clause, perhaps intentionally for a variety
of reasons. \35\
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\34\ 512 U.S. 298 (1994).
\35\ The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 139-49 (1993).
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Preemption
[P. 247, add to n.1026, immediately preceding City of New
York v. FCC:]
Smiley v. Citibank, 116 S. Ct. 1730 (1996).
[P. 247, add to n.1027:]
And see Department of Treasury v. Fabe, 508 U.S. 491
(1993).
[P. 247, add to n.1029:]
See also American Airlines v. Wolens, 513 U.S. 219
(1995).
[P. 248, add to n.1032:]
District of Columbia v. Greater Washington Bd. of Trade,
506 U.S. 125 (1992) (law requiring employers to provide
health insurance coverage, equivalent to existing coverage,
for workers receiving workers' compensation benefits); John
Hancock Mutual Life Ins. Co. v. Harris Trust and Savings
Bank, 510 U.S. 86 (1993) (ERISA's fiduciary standards, not
conflicting state insurance laws, apply to insurance
company's handling of general account assets derived from
participating group annuity contract); New York State Conf.
of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645 (1995) (no preemption of statute that required
hospitals to collect surcharges from patients covered by a
commercial insurer but not from patients covered by Blue
Cross/Blue Shield plan).
[P. 249, add to text following n.1035:]
No clarification of the confusing Cipollone decision
and opinions resulted in Medtronic, Inc. v. Lohr. \36\ The
Medical Device Amendments (MDA) of 1976 prohibits States
from adopting or continuing in effect ``with respect to a
[medical] device'' any ``requirement'' that is ``different
from, or in addition to'' the applicable federal requirement
and that relates to the safety or effectiveness of the
device. \37\ The issue, then, was whether a common-law tort
obligation imposed a ``requirement'' that was different from
or in addition to any federal requirement. The device, a
pacemaker lead, had come on the market not pursuant to the
rigorous FDA test but rather as determined by the FDA to be
``substantially equivalent''
[[Page 10]]
to a device previously on the market, a situation of some
import to at least some of the Justices.
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\36\ 116 S. Ct. 2240 (1996). See also CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)
(under Federal Railroad Safety Act, a state common-law claim
alleging negligence for operating a train at excessive speed
is preempted, but a second claim alleging negligence for
failure to maintain adequate warning devices at a grade
crossing is not preempted).
\37\ 21 U.S.C. Sec. 350k(a).
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Unanimously, the Court determined that a defective
design claim was not preempted and that the MDA did not
prevent States from providing a damages remedy for violation
of common-law duties that paralleled federal requirements.
But the Justices split 4-1-4 with respect to preemption of
various claims relating to manufacturing and labeling. FDA
regulations, which a majority deferred to, limited
preemption to situations in which a particular state
requirement threatens to interfere with a specific federal
interest. Moreover, the common-law standards were not
specifically developed to govern medical devices and their
generality removed them from the category of requirements
``with respect to'' specific devices. However, five Justices
did agree that common-law requirements could be, just as
statutory provisions, ``requirements'' that were preempted,
though they did not agree on the application of that view.
\38\
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\38\ The dissent, by Justice O'Connor and three
others, would have held preempted the latter claims, 116 S.
Ct. at 2262, whereas Justice Breyer thought that common-law
claims would sometimes be preempted, but not here. Id. at
2259 (concurring).
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[P. 252, add to n.1050 before Free v. Brand:]
Allied-Bruce Terminix Cos., v. Dobson, 513 U.S. 265
(1995) (federal arbitration law preempts state law
invalidating predispute arbitration agreements that were not
entered into in contemplation of substantial interstate
activity); Doctor's Associates, Inc. v. Casarotto, 116 S.
Ct. 1652 (1996) (federal arbitration law preempts state
statute that conditioned enforceability of arbitration
clause on compliance with special notice requirement).
[P. 252, add to n.1054:]
See also Barnett Bank of Marion County v. Nelson, 116 S.
Ct. 1103 (1996) (federal law empowering national banks in
small towns to sell insurance preempts state law prohibiting
banks from dealing in insurance; despite explicit preemption
provision, state law stands as an obstacle to accomplishment
of federal purpose).
[P. 255, add to n.1069, immediately following Bethlehem
Steel:]
See also Livadas v. Bradshaw, 512 U.S. 107 (1994)
(finding preempted because it stood as an obstacle to the
achievement of the purposes of NLRA a practice of a state
labor commissioner).
[P. 263, add to n.1114:]
For recent tax controversies, see Oklahoma Tax Comm'n v.
Sac & Fox Nation, 508 U.S. 114 (1993); Department of
Taxation & Finance v. Milhelm Attea & Bros., 512 U.S. 61
(1994); Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct.
2214 (1995).
[[Page 11]]
[P. 263, add to n.1117, immediately following Brendale
discussion:]
And see Hagen v. Utah, 510 U.S. 399 (1994).
[P. 264, add to n.1119:]
See South Dakota v. Bourland, 508 U.S. 679 (1993)
(abrogation of Indian treaty rights and reduction of
sovereignty).
Aliens
[P. 276, add to n.1199:]
See Sale v. Haitian Centers Council, 509 U.S. 155 (1993)
(construing statutes and treaty provisions restrictively to
affirm presidential power to interdict and seize fleeing
aliens on high seas to prevent them from entering U.S.
waters).
[P. 281, add to n.1232:]
In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld
an INS regulation providing for the ongoing detention of
juveniles apprehended on suspicion of being deportable,
unless parents, close relatives, or legal guardians were
available to accept release, as against a substantive due
process attack.
Copyrights and Patents
[P. 297, add to n.1353:]
In Markman v. Westview Instruments, Inc., 116 S. Ct.
1384 (1996), the Court held that the interpretation of terms
in a patent claim is a matter of law reserved entirely for
the court. The Seventh Amendment does not require that such
issues be tried to a jury.
[P. 298, add to n.1359:]
For fair use in the context of a song parody, see
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
The War Power
[P. 316, add to n.1465:]
See Loving v. United States, 116 S. Ct. 1737 (1996) (in
context of the death penalty under the UCMJ).
Taxes on Exports
[P. 356, add to text following n.1775:]
In United States v. IBM Corp., \39\ the Court
declined the Government's argument that it should refine its
export-tax-clause jurisprudence. Rather than read the clause
as a bar on any tax that applies to a good in the export
stream, the Government contended that the Court should bring
this clause in line with the import-export clause \40\ and
with dormant-commerce-clause doctrine. In that
[[Page 12]]
view, the Court should distinguish between discriminatory
and nondiscriminatory taxes on exports. But the Court held
that sufficient differences existed between the export
clause and the other two clauses, so that its bar should
continue to apply to any and all taxes on goods in the
course of exportation.
---------------------------------------------------------------------------
\39\ 116 S. Ct. 1793 (1996).
\40\ Article I, Sec. 10, cl. 2, applying to the
States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
In United States v. IBM Corp., 116 S. Ct. 1793 (1996),
the Court adhered to Thames & Mercy, and held
unconstitutional a federal excise tax upon insurance
policies issued by foreign countries as applied to coverage
for exported products. The Court admitted that one could
question the earlier case's conflating of a tax on the
insurance of exported goods as the same as a tax on the
goods themselves, but it observed that the Government had
chosen not to present that argument. Principles of stare
decisis thus cautioned observance of the earlier case. Id.
at 1800-01. The dissenters argued that the issue had been
presented and should be decided by overruling the earlier
case. Id. at 1804 (Justices Kennedy and Ginsburg
dissenting).
Ex Post Facto Laws
[P. 364, add to n.1829:]
But see California Dep't of Corrections v. Morales, 514
U.S. 499 (1995) (a law amending parole procedures to
decrease frequency of parole-suitability hearings is not ex
post facto as applied to prisoners who committed offenses
before enactment). The opinion modifies previous opinions
that had held impermissible some laws because they operated
to the disadvantage of covered offenders. Henceforth, ``the
focus of ex post facto inquiry is . . . whether any such
change alters the definition of criminal conduct or
increases the penalty by which a crime is punishable.'' Id.
at 506 n.3.
Imposts or Duties on Imports or Exports
[P. 400, add to n.2020:]
See also Itel Containers Int'l Corp. v. Huddleston, 507
U.S. 60, 76-8 (1993). And see id. at 81-2 (Justice Scalia
concurring).
[[Page 13]]
ARTICLE II
Executive Power
[P. 420, add to n.34:]
In Loving v. United States, 116 S. Ct. 1737 (1996), the
Court recurred to the original setting of Curtiss-Wright, a
delegation to the President without standards. Congress, the
Court found, had delegated to the President authority to
structure the death penalty provisions of military law so as
to bring the procedures, relating to aggravating and
mitigating factors, into line with constitutional
requirements, but Congress had provided no standards to
guide the presidential exercise of the authority. Standards
were not required, held the Court, because his role as
Commander-in-Chief gave him responsibility to superintend
the military establishment and Congress and the President
had interlinked authorities with respect to the military.
Where the entity exercising the delegated authority itself
possesses independent authority over the subject matter, the
familiar limitations on delegation do not apply. Id. at
1750-51.
Separation of Powers
[P. 422, add to text following n.45:]
Significant change in the position of the Executive
Branch respecting its position on separation of powers may
be discerned in two briefs of the Department of Justice's
Office of Legal Counsel, which may spell some measure of
judicial modification of the formalist doctrine of
separation and adoption of the functionalist approach to the
doctrine. \1\ The two opinions withdraw from the contention
of the Department of Justice, following Buckley v. Valeo,
that the execution of the laws is an executive function that
may be carried out only by persons appointed pursuant to the
appointments clause, thus precluding delegations to state
and local officers and to private parties (as in qui tam
actions), as well as to glosses on the take care clause and
other provisions of the Constitution. Whether these
memoranda signal long-term change depends on several
factors, importantly on whether they are adhered to by
subsequent administrations.
---------------------------------------------------------------------------
\1\ Memorandum for John Schmidt, Associate Attorney
General, from Assistant Attorney General Walter Dellinger,
Constitutional Limitations on Federal Government
Participation in Binding Arbitration (Sept. 7, 1995);
Memorandum for the General Counsels of the Federal
Government, from Assistant Attorney General Walter
Dellinger, The Constitutional Separation of Powers Between
the President and Congress (May 7, 1996). The principles
laid down in the memoranda depart significantly from
previous positions of the Department of Justice. For
conflicting versions of the two approaches, see
Constitutional Implications of the Chemical Weapons
Convention, Hearings Before the Senate Judiciary
Subcommittee on the Constitution, Federalism, and Property
Rights, 104th Cong., 2d Sess. (1996), 11-26, 107-10
(Professor John C. Woo), 80-106 (Deputy Assistant Attorney
General Richard L. Shiffrin).
---------------------------------------------------------------------------
[[Page 14]]
[P. 425, in text following n.61, add:]
In the course of deciding that the President's
action in approving the closure of a military base, pursuant
to statutory authority, was not subject to judicial review,
the Court enunciated a principle that may mean a great deal,
constitutionally speaking, or that may not mean much of
anything. \2\ The lower court had held that, while review of
presidential decisions on statutory grounds might be
precluded, his decisions were reviewable for
constitutionality; in that court's view, whenever the
President acts in excess of his statutory authority, he also
violates the constitutional separation-of-powers doctrine.
The Supreme Court found this analysis flawed. ``Our cases do
not support the proposition that every action by the
President, or by another executive official, in excess of
his statutory authority is ipso facto in violation of the
Constitution. On the contrary, we have often distinguished
between claims of constitutional violations and claims that
an official has acted in excess of his statutory
authority.'' \3\ Thus, the Court drew a distinction between
executive action undertaken without even the purported
warrant of statutory authorization and executive action in
excess of statutory authority. The former may violate
separation of powers, while the latter will not. \4\
---------------------------------------------------------------------------
\2\ Dalton v. Specter, 511 U.S. 462 (1994).
\3\ Id. at 472.
\4\ See The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 300-10 (1994).
---------------------------------------------------------------------------
Doctrinally, the distinction is important and
subject to unfortunate application. \5\ Whether the brief,
unilluminating discussion in Dalton will bear fruit in
constitutional jurisprudence, however, is problematic.
---------------------------------------------------------------------------
\5\ ``As a matter of constitutional logic, the
executive branch must have some warrant, either statutory or
constitutional, for its actions. The source of all federal
governmental authority is the Constitution and, because the
Constitution contemplates that Congress may delegate a
measure of its power to officials in the executive branch,
statutes. The principle of separation of powers is a direct
consequence of this scheme. Absent statutory authorization,
it is unlawful for the President to exercise the powers of
the other branches because the Constitution does not vest
those powers in the President. The absence of statutory
authorization is not merely a statutory defect; it is a
constitutional defect as well.'' Id. at 305-06 (footnote
citations omitted).
---------------------------------------------------------------------------
Appointment of Officers
[P. 512, add to n.461:]
The designation or appointment of military judges, who
are ``officers of the United States,'' does not violate the
appointments clause. The judges are selected by the Judge
Advocate General of their respective branch of the Armed
Forces. These military judges, however, were already
commissioned officers who had been appointed by the
President with the advice and consent of the Senate, so that
their designa-
[[Page 15]]
tion simply and permissibly was an assignment to them of
additional duties that did not need a second formal
appointment. Weiss v. United States, 510 U.S. 163 (1994).
However, the appointment of civilian judges to the Coast
Guard Court of Military Review was impermissible and their
actions were not salvageable under the de facto officer
doctrine. Ryder v. United States, 515 U.S. 177 (1995).
[P. 519, add to n.498:]
The Supreme Court held this provision unconstitutional
in United States v. NTEU, 513 U.S. 454 (1995).
Presidential Immunity From Judicial Direction
[P. 579, add to n.723:]
See also, following Franklin, Dalton v. Specter, 511
U.S. 462 (1994).
[P. 582, add to n.743:]
Following the Westfall decision, Congress enacted the
Federal Employees Liability Reform and Tort Compensation Act
of 1988 (the Westfall Act), which authorized the Attorney
General to certify that an employee was acting within the
scope of his office or employment at the time of the
incident out of which a suit arose; upon certification, the
employee is dismissed from the action, and the United States
is substituted, the Federal Tort Claims Act (FTCA) then
governing the action, which means that sometimes the action
must be dismissed against the Government because the FTCA
has not waived sovereign immunity. Cognizant of the
temptation set before the Government to immunize both itself
and its employee, the Court in Gutierrez de Martinez v.
Lamagno, 115 S. Ct. 2227 (1995), held that the Attorney
General's certification is subject to judicial review.
Impeachment
[P. 591, in text following n.784, add:]
Upon at last reaching the question, the Court has
held that a claim to judicial review of an issue arising in
an impeachment trial in the Senate presents a nonjusticiable
question, a ``political question.'' \6\ Specifically, the
Could held that a claim that the Senate had not followed the
proper meaning of the word ``try'' in the impeachment
clause, a special committee being appointed to take
testimony and to make a report to the full Senate, complete
with a full transcript, on which the Senate acted, could not
be reviewed. But the analysis of the Court applies to all
impeachment clause questions, thus seemingly putting off-
limits to judicial review the whole process.
---------------------------------------------------------------------------
\6\ Nixon v. United States, 506 U.S. 224 (1993).
Nixon at the time of his conviction and removal from office
was a federal district judge in Mississippi.
[[Page 17]]
---------------------------------------------------------------------------
ARTICLE III
Judicial Power
[P. 618, add to text following n.126:]
Judicial power confers on federal courts the power
to decide a case, to render a judgment conclusively
resolving a case. Judicial power is the authority to render
dispositive judgments, and Congress violates the separation
of powers when it purports to alter final judgments of
Article III courts. \1\ In this controversy, the Court had
unexpectedly fixed on a shorter statute of limitations to
file certain securities actions than that believed to be the
time in many jurisdictions. Resultantly, several suits that
had been filed later than the determined limitations had
been dismissed and had become final because they were not
appealed. Congress enacted a statute, which, while not
changing the limitations period prospectively, retroactively
extended the time for suits dismissed and provided for the
reopening of the final judgments rendered in the dismissals
of suits.
---------------------------------------------------------------------------
\1\ Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
218-19 (1995). The Court was careful to delineate the
difference between attempting to alter a final judgment, one
rendered by a court and either not appealed or affirmed on
appeal, and legislatively amending a statute so as to change
the law as it existed at the time a court issued a decision
that was on appeal or otherwise still alive at the time a
federal court reviewed the determination below. A court must
apply the law as revised when it considers the prior
interpretation. Id. at 226-27.
Article III creates or authorizes Congress to create
not a collection of unconnected courts, but a judicial
department composed of ``inferior courts'' and ``one Supreme
Court.'' ``Within that hierarchy, the decision of an
inferior court is not (unless the time for appeal has
expired) the final word of the department as a whole.'' Id.
at 227.
---------------------------------------------------------------------------
Holding the congressional act invalid, the Court
held it impermissible for Congress to disturb a final
judgment. ``Having achieved finality, . . . a judicial
decision becomes the last word of the judicial department
with regard to a particular case or controversy, and
Congress may not declare by retroactive legislation that the
law applicable to that very case was something other than
what the courts said it was.'' \2\
---------------------------------------------------------------------------
\2\ Id. at 227 (emphasis by Court).
---------------------------------------------------------------------------
[P. 620, add to n.140:]
Notice the Court's discussion in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 218, 225-26 (1995).
[[Page 18]]
Contempt Power
[P. 622, add to text following n.154:]
In International Union, UMW v. Bagwell, \3\ the
Court formulated a new test for drawing the distinction
between civil and criminal contempts, which has important
consequences for the procedural rights to be accorded those
cited. Henceforth, the imposition of non-compensatory
contempt fines for the violation of any complex injunction
will require criminal proceedings. This case, as have so
many, involved the imposition of large fines (here, $52
million) upon a union in a strike situation for violations
of an elaborate court injunction restraining union activity
during the strike. The Court was vague with regard to the
standards for determining when a court order is ``complex''
and thus requires the protection of criminal proceedings.
\4\ Much prior doctrine, however, as in the distinction
between remedial sanctions, which are civil, and punitive,
which are criminal, and between in-court and out-of-court
contempts remain.
---------------------------------------------------------------------------
\3\ 512 U.S. 821 (1994).
\4\ Id. at 832-38. Relevant is the fact that the
alleged contempts did not occur in the presence of the court
and that determinations of violations require elaborate and
reliable factfinding. See esp. id. at 837-38.
---------------------------------------------------------------------------
[P. 631, add to n.195:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994) (refining the test for when contempt citations
are criminal and thus require jury trials).
[P. 631, add to n.196:]
In International Union, UMW v. Bagwell, 512 U.S. 821,
837 n.5 (1994), the Court continued to reserve the question
of the distinction between petty and serious contempt fines,
because of the size of the fine in that case.
[P. 634, add to n.206:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994).
Congressional Control Over Habeas
[P. 639, add to text following n.238:]
In Felker v. Turpin, \5\ the Court again passed up
the opportunity to delineate Congress' permissive authority
over habeas, finding that of the provisions of the
Antiterrorism and Effective Death Penalty Act \6\ none did
raise questions of constitutional import.
---------------------------------------------------------------------------
\5\ 116 S. Ct. 2333 (1996).
\6\ P. L. 104-132, Sec. Sec. 101-08, 110 Stat. 1214,
1217-26, amending, inter alia, 28 U.S.C. Sec. Sec. 2244,
2253, 2254, 2255, and Fed. R. App. P. 22.
---------------------------------------------------------------------------
[[Page 19]]
Congressional Control Over the Injunctive Process
[P. 642, add to text following n.264:]
Perhaps pressing its powers further than prior
legislation, Congress has enacted the Prison Litigation
Reform Act of 1996. \7\ Essentially, the law imposes a
series of restrictions on judicial remedies in prison-
conditions cases. Thus, courts may not issue prospective
relief that extends beyond that necessary to correct the
violation of a federal right that they have found, that is
narrowly drawn, is the least intrusive, and that does not
give attention to the adverse impact on public safety.
Preliminary injunctive relief is limited by the same
standards. Consent decrees may not be approved unless they
are subject to the same conditions, meaning that the court
must conduct a trial and find violations, thus cutting off
consent decrees. If a decree was previously issued without
regard to the standards now imposed, the defendant or
intervenor is entitled to move to vacate it. No prospective
relief is to last longer than two years if any party or
intervenor so moves. A number of constitutional challenges
can be expected respecting Congress' power to limit federal
judicial authority to remedy constitutional violations.
---------------------------------------------------------------------------
\7\ The statute was part of an Omnibus
Appropriations Act signed by the President on April 26,
1996. P. L. 104-134, Sec. Sec. 801-10, 110 Stat. 1321-66-77,
amending 18 U.S.C. Sec. 3626. See Benjamin v. Jacobson, 935
F. Supp. 332 (S.D.N.Y. 1996).
---------------------------------------------------------------------------
Standing
[P. 661, add to text following n.357:]
In a case permitting a plaintiff contractors'
association to challenge an affirmative-action, set-aside
program, the Court seemed to depart from several restrictive
standing decisions in which it had held that the claims of
attempted litigants were too ``speculative'' or too
``contingent.'' \8\ The association had sued, alleging that
many of its members ``regularly bid on and perform
construction work'' for the city and that they would have
bid on the set-aside contracts but for the restrictions. The
Court found the association had standing, because certain
prior cases under the equal protection clause established a
relevant proposition. ``When the government erects a barrier
that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group, a
member of the former group seeking to challenge the barrier
need not allege that he would have obtained the benefit but
for the barrier in order
[[Page 20]]
to establish standing. The `injury in fact' in an equal
protection case of this variety is the denial of equal
treatment resulting from the imposition of the barrier, not
the ultimate inability to obtain the benefit.'' \9\ The
association, therefore, established standing by alleging
that its members was able and ready to bid on contracts but
that a discriminatory policy prevented them from doing so on
an equal basis. \10\
---------------------------------------------------------------------------
\8\ Thus, it appears that had the Court applied its
standard in the current case, the results would have been
different in such cases as Linda R. S. v. Richard D., 410
U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon
v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976);
and Allen v. Wright, 468 U.S. 737 (1984).
\9\ Northeastern Fla. Ch. of the Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 666
(1993). The Court derived the proposition from another set
of cases. Turner v. Fouche, 396 U.S. 346 (1970); Clements v.
Fashing, 457 U.S. 957 (1982); Regents of the Univ. of
California v. Bakke, 438 U.S. 265, 281 n.14 (1978).
\10\ 508 U.S. at 666. But see, in the context of
ripeness, Reno v. Catholic Social Services, Inc., 509 U.S.
43 (1993), in which the Court, over the dissent's reliance
on Jacksonville, id. at 81-2, denied the relevance of its
distinction between entitlement to a benefit and equal
treatment. Id. at 58 n.19.
---------------------------------------------------------------------------
Declaratory Judgments
[P. 674, add to n.436:]
See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
Ripeness
[P. 678, add to n.457:]
In the context of the ripeness to challenge of agency
regulations, as to which there is a presumption of available
judicial remedies, the Court has long insisted that federal
courts should be reluctant to review such regulations unless
the effects of administrative action challenged have been
felt in a concrete way by the challenging parties, i.e.,
unless the controversy is ``ripe.'' See, of the older cases,
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet
Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner
v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967). More
recent cases include Reno v. Catholic Social Services, Inc.,
509 U.S. 43 (1993); Lujan v. National Wildlife Federation,
497 U.S. 871, 891 (1990).
Mootness
[P. 679, add to n.462:]
Munsingwear had long stood for the proposition that the
appropriate practice of the Court in a civil case that had
become moot while on the way to the Court or after
certiorari had been granted was to vacate or reverse and
remand with directions to dismiss. But, in U. S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
the Court held that when mootness occurs because the parties
have reached a settlement, vacatur of the judgment below is
ordinarily not the best practice; instead, equitable
principles should be applied so as to preserve a
presumptively correct and valuable precedent, unless a court
concludes that the public interest would be served by
vacatur.
[PP. 679-80, add to n.463:]
Consider the impact of Cardinal Chemical Co. v. Morton
Int'l, Inc., 508 U.S. 83 (1993).
[[Page 21]]
[P. 680, add to n.466:]
Following Aladdin's Castle, the Court in Northeastern
Fla. Ch. of the Associated Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 660-63 (1993), held that when a
municipal ordinance is repealed but replaced by one
sufficiently similar so that the challenged action in effect
continues, the case is not moot. But see id. at 669 (Justice
O'Connor dissenting) (modification of ordinance more
significant and case is mooted).
Retroactivity of Judicial Decisions
[P. 687, add to text following n.509:]
Apparently, the Court now has resolved this dispute,
although the principal decision is a close five-to-four
result. In Harper v. Virginia Dep't of Taxation, \11\ the
Court adopted the principle of the Griffith decision in
criminal cases and disregarded the Chevron Oil approach in
civil cases. Henceforth, in civil cases, the rule is: ``When
this Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of
federal law and must be given full retroactive effect in all
cases open on direct review and as to all events, regardless
of whether such events predate or postdate our announcement
of the rule.'' \12\ Four Justices continued to adhere to
Chevron Oil, however, \13\ so that with one Justice each
retired from the different sides one may not regard the
issue as definitively settled. \14\
---------------------------------------------------------------------------
\11\ 509 U.S. 86 (1993).
\12\ Id. at 97. While the conditional language in
this passage might suggest that the Court was leaving open
the possibility that in some cases it might rule purely
prospectively, not even applying its decision to the parties
before it, other language belies that possibility. ``This
rule extends Griffith's ban against ```selective application
of new rules.''' [Citing 479 U.S. at 323]. Inasmuch as
Griffith rested in part on the principle that ``the nature
of judicial review requires that [the Court] adjudicate
specific cases,'' Griffith, 479 U.S. at 322, deriving from
Article III's case or controversy requirement for federal
courts and forbidding federal courts from acting
legislatively, the ``Court has no more constitutional
authority in civil cases than in criminal cases to disregard
current law or to treat similarly situated litigants
differently.'' 509 U.S. at 97 (quoting American Trucking,
496 U.S. at 214 (Justice Stevens dissenting)). The point is
made more clearly in Justice Scalia's concurrence, in which
he denounces all forms of nonretroactivity as ``the handmaid
of judicial activism.'' Id. at 105.
\13\ Id. at 110 (Justice Kennedy, with Justice
White, concurring); 113 (Justice O'Connor, with Chief
Justice Rehnquist, dissenting). However, these Justices
disagreed in this case about the proper application of
Chevron Oil.
\14\ But see Reynoldsville Casket Co. v. Hyde, 514
U.S. 749 (1995) (setting aside a state court refusal to give
retroactive effect to a U. S. Supreme Court invalidation of
that State's statute of limitations in certain suits, in an
opinion by Justice Breyer, Justice Blackmun's successor);
Ryder v. United States, 515 U.S. 177, 184-85 (1995)
(``whatever the continuing validity of Chevron Oil after''
Harper and Reynoldsville Casket).
---------------------------------------------------------------------------
[[Page 22]]
Political Questions
[P. 696, add to text following n.569:]
A challenge to the Senate's interpretation of and
exercise of its impeachment powers was held to be
nonjusticiable; there was a textually demonstrable
commitment of the issue to the Senate, and there was a lack
of judicially discoverable and manageable standards for
resolving the issue. \15\
---------------------------------------------------------------------------
\15\ Nixon v. United States, 506 U.S. 224 (1993).
The Court pronounced its decision as perfectly consonant
with Powell v. McCormack. Id. at 236-38.
---------------------------------------------------------------------------
Judicial Review--Stare Decisis
[P. 712, add to n.639:]
Recent discussions of and both applications of and
refusals to apply stare decisis may be found in United
States v. IBM Corp., 116 S. Ct. 1793, 1800-01 (1996) (noting
principles of following precedent and declining to consider
overturning an old precedent when parties have not advanced
arguments on the point), with which compare id. at 1804
(Justice Kennedy dissenting) (arguing that the United States
had presented the point and that the old case ought to be
overturned); Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 231-35 (1996) (plurality opinion) (discussing stare
decisis, citing past instances of overrulings, and
overruling 1990 decision), with which compare the dissents,
id. at 242, 264, 271; Seminole Tribe of Florida v. Florida,
116 S. Ct. 1114, 1127-32 (1996) (discussing policy of stare
decisis, why it should not be followed with respect to a
1989 decision, and overruling that precedent), with which
compare the dissents, id. at 1133, 1145. Justices Scalia and
Thomas have argued for various departures from precedent.
E.g., Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S.
175, 200-01 (1995) (Justice Scalia concurring) (negative
commerce jurisprudence); Colorado Republican Campaign Comm.
v. FEC, 116 S. Ct. 2309, 2323 (1996) (Justice Thomas
concurring in part and dissenting in part) (rejecting
framework of Buckley v. Valeo and calling for overruling of
part of case). Compare id. at 2321 (Court notes those issues
not raised or argued).
Federal Question Jurisdiction
P. 721, add to n.702:]
See also Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375 (1994); Peacock v. Thomas, 116 S. Ct. 862 (1996) (both
cases using the new vernacular of ``ancillary
jurisdiction'').
Admiralty
[P. 734, add to n.780:]
And see Grubart v. Great Lakes Dredge & Dock Co., 513
U.S. 527 (1995), a tort claim arising out of damages
allegedly caused by negligently driving piles from a barge
into the riverbed, which weakened a freight tunnel that
allowed flooding of the tunnel and the basements of numerous
buildings along the Chicago River, the Court found that
admiralty jurisdiction could be invoked. The location test
was satisfied, because the barge, even though fastened to
the river bottom, was a ``vessel'' for admiralty tort
purposes; the two-part connection test was also satisfied,
inasmuch as the incident had a potential to disrupt maritime
commerce and the conduct
[[Page 23]]
giving rise to the incident had a substantial relationship
to traditional maritime activity.
United States as a Party
[P. 743, add to n.842:]
But, in Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619
(1996), a case involving a death in territorial waters from
a jet ski accident, the Court held that Moragne does not
provide the exclusive remedy in cases involving the death in
territorial waters of a ``nonseafarer'' - a person who is
neither a seaman covered by the Jones Act nor a longshore
worker covered by the LHWCA.
[P. 747, add to n.863:]
See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC's ``sue-
and-be-sued'' clause waives sovereign immunity; but a Bivens
implied cause of action for constitutional torts cannot be
used directly against FSLIC).
Suits Between States
[P. 755, add to n.909:]
But in Mississippi v. Louisiana, 506 U.S. 73 (1992), the
Court's reluctance to exercise original jurisdiction ran
afoul of the ``uncompromising language'' of 28 U.S.C.
Sec. 1251(a) giving the Court ``original and exclusive
jurisdiction'' of these kinds of suits.
Diversity of Citizenship
[P. 772, add to text following n.1013:]
Some confusion has been injected into consideration
of which law to apply--state or federal--in the absence of a
federal statute or a Federal Rule of Civil Procedure. \16\
In an action for damages, the federal courts were faced with
the issue of the application either of a state statute,
which gave the appellate division of the state courts the
authority to determine if an award is excessive or
inadequate if it deviates materially from what would be
reasonable compensation, or of a federal judicially-created
practice of review of awards as so exorbitant that it
shocked the conscience of the court. The Court determined
that the state statute was both substantive and procedural,
which would result in substantial variations between state
and federal damage awards depending whether the state or the
federal approach was applied; it then followed the mode of
analysis exemplified by those cases emphasizing the
importance of federal courts reaching the same outcome as
would the state courts, \17\ rather than what had been the
prevailing standard,
[[Page 24]]
in which the Court balanced state and federal interests to
determine which law to apply. \18\ Emphasis upon either
approach to considerations of applying state or federal law
reflects a continuing difficulty of accommodating ``the
constitutional power of the states to regulate the relations
among their citizens . . . [and] the constitutional power of
the federal government to determine how its courts are to be
operated.'' \19\ Additional decisions will be required to
determine which approach, if either, prevails.
---------------------------------------------------------------------------
\16\ Gasperini v. Center for Humanities, Inc., 116
S. Ct. 2211 (1996). The decision was five-to-four, so that
the precedent may or may not be stable for future
application.
\17\ E.g., Guaranty Trust Co. v. York, 326 U.S. 99
(1945).
\18\ E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356
U.S. 525 (1958).
\19\ 19 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure (2d ed. 1996), Sec. 4511, at 311.
---------------------------------------------------------------------------
[P. 773, add to n.1016:]
But see O'Melveny & Myers v. FDIC, 512 U.S. 79
(1994).
Power of Congress to Control the Federal Courts
[P. 788, add to n.1105:]
A restrained reading of McCardle is strongly suggested
by Felker v. Turpin, 116 S. Ct. 2333 (1996). A 1996
congressional statute giving to federal courts of appeal a
``gate-keeping'' function over the filing of second or
successive habeas petitions limited further review,
including denying the Supreme Court appellate review of
circuit court denials of motions to file second or
successive habeas petitions. Pub. L. 104-132, Sec. 106, 110
Stat. 1214, 1220, amending 28 U.S.C. Sec. 2244(b). Upholding
the limitation, which was nearly identical to the
congressional action at issue in McCardle and Yerger, the
Court held that its jurisdiction to hear appellate cases had
been denied, but just as in Yerger the statute did not annul
the Court's jurisdiction to hear habeas petitions filed as
original matters in the Supreme Court. No constitutional
issue was thus presented.
Federal-State Court Relations
[Pp. 798-99, add to n.1161:]
But in Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712
(1996), an exercise in Burford abstention, the Court held
that federal courts have power to dismiss or remand cases
based on abstention principles only where relief being
sought is equitable or otherwise discretionary but may not
do so in common-law actions for damages.
Habeas Corpus
[P. 818, add to text following n.1270:]
The Court continues, with some modest exceptions, to
construe habeas jurisdiction quite restrictively, but it has
now been joined by new congressional legislation that is
also restrictive. In Herrera v. Collins, \20\ the Court
appeared, though ambiguously, to take the position that,
while it requires a showing of actual innocence to permit a
claimant to bring a successive or abusive petition, a claim
[[Page 25]]
of innocence is not alone sufficient to enable a claimant to
obtain review of his conviction on habeas. Petitioners are
entitled in federal habeas courts to show that they are
imprisoned in violation of the Constitution, not to seek to
correct errors of fact. But a claim of innocence does not
bear on the constitutionality of one's conviction or
detention, and the execution of one claiming actual
innocence would not itself violate the Constitution. \21\
---------------------------------------------------------------------------
\20\ 506 U.S. 390 (1993).
\21\ Id. at 398-417. However, in a subsequent part
of the opinion, the Court purports to reserve the question
whether ``a truly persuasive demonstration of `actual
innocence' made after trial would render the execution of a
defendant unconstitutional,'' and it imposed a high standard
for making this showing. Id. at 417-19. Justices Scalia and
Thomas would have unequivocally held that ``[t]here is no
basis in text, tradition, or even in contemporary practice
. . . for finding in the Constitution a right to demand
judicial consideration of newly discovered evidence of
innocence brought forward after conviction.'' Id. at 427-28
(Concurring). However, it is not at all clear that all the
Justices joining the Court believe innocence to be
nondispositive on habeas. Id. at 419 (Justices O'Connor and
Kennedy concurring), 429 (Justice White concurring).
---------------------------------------------------------------------------
But, in Schlup v. Delo, \22\ the Court adopted the
plurality opinion of Kuhlmann v. Wilson and held that,
absent a sufficient showing of ``cause and prejudice,'' a
claimant filing a successive or abusive petition must, as an
initial matter, make a showing of ``actual innocence'' so as
to fall within the narrow class of cases implicating a
fundamental miscarriage of justice. The Court divided,
however, with respect to the showing a claimant must make.
One standard, found in some of the cases, was championed by
the dissenters; ``to show `actual innocence' one must show
by clear and convincing evidence that but for a
constitutional error, no reasonable juror would have found
the petitioner eligible for the death penalty.'' \23\ The
Court adopted a second standard, under which the petitioner
must demonstrate that ``a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.'' To meet this burden, a claimant ``must show that
it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.'' \24\
---------------------------------------------------------------------------
\22\ 513 U.S. 298 (1995).
\23\ Id. at 334 (Chief Justice Rehnquist dissenting,
with Justices Kennedy and Thomas), 342 (Justice Scalia
dissenting, with Justice Thomas). This standard was drawn
from Sawyer v. Whitney, 505 U.S. 333 (1995).
\24\ 513 U.S. at 327. This standard was drawn from
Murray v. Carrier, 477 U.S. 478 (1986).
---------------------------------------------------------------------------
In the Antiterrorism and Effective Death Penalty Act
of 1996, \25\ Congress imposed tight new restrictions on
successive or abusive petitions, including making the
circuit courts ``gate keepers'' in permitting or denying the
filing of such petitions, with bars to appellate review of
these decisions, provisions that in part were
[[Page 26]]
upheld in Felker v. Turpin. \26\ An important new
restriction on the authority of federal habeas courts is
that found in the new law, which provides that a habeas
court shall not grant a writ to any person in custody
pursuant to a judgment of a state court ``with respect to
any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim - (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme court of the United
States[.]'' \27\
---------------------------------------------------------------------------
\25\ P. L. 104-132, Title I, 110 Stat. 1217-21,
amending 28 U.S.C. Sec. Sec. 2244, 2253, 2254, and Rule 22
of the Federal Rules of Appellate Procedure.
\26\ 116 S. Ct. 2333 (1996).
\27\ The amended 28 U.S.C. Sec. 2254(d) (emphasis
supplied). On the constitutionality of this provision, see
the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th
Cir. 1996) (en banc).
[[Page 27]]
FIRST AMENDMENT
RELIGION
An Overview
--Court Tests Applied to Legislation Affecting Religion
[Pp. 973-74, change text following n.25 to read:]
and with increasing frequency have not been applied
at all by the Court.
[P. 974, add to n.26 following Lee v. Weisman citation:]
Zobrest v. Catalina Foothills School Dist., 509 U.S. 1
(1993) (upholding provision of sign-language interpreter to
deaf student attending parochial school); Board of Educ. of
Kiryas Joel Village v. Grumet, 114 S. Ct. 2481 (1994)
(invalidating law creating special school district for
village composed exclusively of members of one religious
sect).
[P. 974, add to text following n.29:]
Justice O'Connor has suggested that it is
inappropriate to try to shoehorn all Establishment cases
into one test, and has called instead for recognition that
different contexts may call for different approaches. \1\
For example, the Justice proposes that cases involving
government ``speech'' on religious topics be judged by an
endorsement test that would invalidate government actions
only if a reasonable observer would perceive the action as
an endorsement or disapproval of religious belief. \2\
---------------------------------------------------------------------------
\1\ Board of Educ. of Kiryas Joel Village v. Grumet,
114 S. Ct. 2481, 2498-99 (1994).
\2\ Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(concurring); Allegheny County v. Greater Pittsburgh ACLU,
492 U.S. 573, 625 (1989) (concurring); Board of Educ. of
Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2500 (1994)
(concurring).
---------------------------------------------------------------------------
ESTABLISHMENT OF RELIGION
[P. 977, add to text following n.41:]
``[The] Court has long held that the First Amendment
reaches more than classic, 18th century establishments.''
\3\
---------------------------------------------------------------------------
\3\ Board of Educ. of Kiryas Joel Village v. Grumet,
114 S. Ct. 2481, 2494 (1994) (citing Torcaso v. Watkins, 367
U.S. 488, 492-95 (1961)).
---------------------------------------------------------------------------
Financial Assistance to Church-Related Institutions
[P. 984, add to text following n.74:]
On the other hand, public payment of a sign-language
interpreter for a deaf student attending parochial school
created no such
[[Page 28]]
effects or entanglement problems, the Court ruled in a later
case, since this was not an expense that the parochial
school would otherwise have borne, and since the interpreter
had no role in selecting or editing the content of the
educational and religious lessons. \4\ Aguilar and Grand
Rapids are now tenuous at best, five Justices having
recently expressed the opinion that the cases should be
overruled or at least reconsidered. \5\
---------------------------------------------------------------------------
\4\ Zobrest v. Catalina Foothills School Dist., 509
U.S. 1 (1993).
\5\ See Board of Educ. of Kiryas Joel Village v.
Grumet, 114 S. Ct. 2481 (1994). Four Justices advocated
outright overruling: Justice O'Connor, id. at 2498 (Aguilar
erroneously requires ``disfavoring'' of religion and should
be reconsidered) (concurring opinion); and Justice Scalia,
joined by Chief Justice Rehnquist and Justice Thomas, Id. at
2514-15 (dissenting opinion). Justice Kennedy stated that
the cases ``may have been erroneous,'' and advocated
reconsideration. Id. at 2505 (concurring opinion).
---------------------------------------------------------------------------
[P. 988, add to n.92:]
Similar reasoning led the Court to rule that provision
of a sign-language interpreter to a deaf student attending a
parochial school is permissible as part of a neutral program
offering such services to all students regardless of what
school they attend. Zobrest v. Catalina Foothills School
Dist., 509 U.S. 1 (1993). The interpreter, the Court noted
additionally, merely transmits whatever material is
presented, and neither adds to nor subtracts from the
school's sectarian environment. Id. at 13.
[P. 997, change heading to:]
Access of Religious Groups to Public Property
[P. 997, add to text following n.130:]
Similarly, public schools may not rely on the
Establishment Clause as grounds to discriminate against
religious groups in after-hours use of school property
otherwise available for non-religious social, civic, and
recreational purposes; \6\ public colleges may not exclude
student religious organizations from benefits otherwise
provided to a full spectrum of student ``news, information,
opinion, entertainment, or academic communications media
groups;'' \7\ and a state that creates a traditional public
forum for citizen speeches and unattended displays on a
plaza at its state capitol cannot, on Establishment Clause
grounds, deny access for a religious display. \8\ These
cases make clear that the Establishment Clause does not
[[Page 29]]
necessarily trump the First Amendment's protection of
freedom of speech; in regulating private speech in a public
forum, government may not justify discrimination against
religious viewpoints as necessary to avoid creating an
``establishment'' of religion.
---------------------------------------------------------------------------
\6\ Lamb's Chapel v. Center Moriches School Dist.,
508 U.S. 384 (1993). The Court explained that there was ``no
realistic danger that the community would think that the
District was endorsing religion,'' and that the three-part
Lemon test would not have been violated. Id. at 395.
Concurring opinions by Justice Scalia, joined by Justice
Thomas, and by Justice Kennedy, criticized the Court's
reference to Lemon. ``Like some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles
abroad, after being repeatedly killed and buried, Lemon
stalks our Establishment Clause jurisprudence once again,''
Justice Scalia lamented. Id. at 398.
\7\ Rosenberger v. University of Virginia, 115 S.
Ct. 2510 (1995).
\8\ Capitol Square Review Bd. v. Pinette, 115 S. Ct.
2440 (1995).
---------------------------------------------------------------------------
[P. 1002, add new heading following n.163:]
Religious Displays on Government Property
[P. 1004, add new paragraph at end of section:]
In Capitol Square Review Bd. v. Pinette, \9\ the
Court distinguished privately sponsored from governmentally
sponsored religious displays on public property. There the
Court ruled that Ohio violated free speech rights by
refusing to allow the Ku Klux Klan to display an unattended
cross in a publicly owned plaza outside the Ohio Statehouse.
Because the plaza was a public forum in which the State had
allowed a broad range of speakers and a variety of
unattended displays, the State could regulate the expressive
content of such speeches and displays only if the
restriction was necessary, and narrowly drawn, to serve a
compelling state interest. The Court recognized that
compliance with the Establishment Clause can be a
sufficiently compelling reason to justify content-based
restrictions on speech, but saw no need to apply this
principle when permission to display a religious symbol is
granted through the same procedures, and on the same terms,
required of other private groups seeking to convey non-
religious messages.
---------------------------------------------------------------------------
\9\ 115 S. Ct. 2440 (1995). The Court was divided 7-
2 on the merits of Pinette, a vote that obscured continuing
disagreement over analytical approach. The portions of
Justice Scalia's opinion that formed the opinion of the
Court were joined by Chief Justice Rehnquist and by Justices
O'Connor, Kennedy, Souter, Thomas, and Breyer. A separate
part of Justice Scalia's opinion, joined only by the Chief
Justice and by Justices Kennedy and Thomas, disputed the
assertions of Justices O'Connor, Souter, and Breyer that the
``endorsement'' test should be applied. Dissenting Justice
Stevens thought that allowing the display on the Capitol
grounds did carry ``a clear image of endorsement'' (id. at
2471), and Justice Ginsburg's brief opinion seemingly agreed
with that conclusion.
---------------------------------------------------------------------------
Miscellaneous
[P. 1005, add to text at end of section:]
Using somewhat similar reasoning, the Court in Board
of Education of Kiryas Joel Village v. Grumet, \10\
invalidated a New York law creating a special school
district for an incorporated village
[[Page 30]]
composed exclusively of members of one small religious sect.
The statute failed ``the test of neutrality,'' the Court
concluded, since it delegated power to an electorate defined
by common religious belief and practice, in a manner that
fails to foreclose religious favoritism.'' It was the
``anomalously case-specific nature of the legislature's
exercise of authority'' that left the Court ``without any
direct way to review such state action'' for conformity with
the neutrality principle. Because the village did not
receive its governmental authority simply as one of many
communities eligible under a general law, the Court
explained, there was no way of knowing whether the
legislature would grant similar benefits on an equal basis
to other religious and nonreligious groups.
---------------------------------------------------------------------------
\10\ 114 S. Ct. 2481 (1994). Only four Justices
(Souter, Blackmun, Stevens, and Ginsburg) thought that the
Grendel's Den principle applied; in their view the
distinction that the delegation was to a village electorate
rather than to a religious body ``lack[ed] constitutional
significance'' under the peculiar circumstances of the case.
114 S. Ct. at 2488.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
[P. 1007, add to n.188:]
Board of Educ. of Kiryas Joel Village v. Grumet, 114 S.
Ct. 2481, 2492-93 (1994) (``accommodation is not a principle
without limits;'' one limitation is that ``neutrality as
among religions must be honored'').
Free Exercise Exemption From General Governmental
Requirements
[P. 1018, add new paragraph following n.253:]
The political processes were soon utilized in an
attempt to provide additional protection for religious
exercise. In the Religious Freedom Restoration Act of 1993,
\11\ Congress sought to supersede Smith and substitute a
statutory rule of decision. The Act provides that laws of
general applicability--federal, state, and local--may
substantially burden free exercise of religion only if they
further a compelling governmental interest and constitute
the least restrictive means of doing so. The purpose,
Congress declared in the Act itself, was ``to restore the
compelling interest test as set forth in Sherbert v. Verner
and Wisconsin v. Yoder and to guarantee its application in
all cases where free exercise of religion is substantially
burdened.'' \12\ Enactment of the Religious Freedom
Restoration Act does not, however, close the book on Smith.
Issues concerning the RFRA's constitutionality ensure
continuing litigation over the appropriate constitutional
test. \13\
---------------------------------------------------------------------------
\11\ Pub. L. 103-141, 107 Stat. 1488 (1993); 42
U.S.C. Sec. Sec. 2000bb to 2000bb-4.
\12\ Pub. L. 103-141, Sec. 2(b)(1) (citations
omitted). Congress also avowed a purpose of providing ``a
claim or defense to persons whose religious exercise is
substantially burdened by government.'' Sec. 2(b)(2).
\13\ See, e.g., Flores v. City of Boerne, 877 F.
Supp. 355 (W.D. Tex. 1995) (holding the RFRA
unconstitutional); and Canedy v. Boardman, 16 F.3d 183, 186
n.2 (7th Cir. 1994) (dictum that the constitutionality of
the RFRA--not before the court--``raises a number of
questions involving the extent of Congress's powers under
Section 5 of the Fourteenth Amendment''). For an overview of
these issues, see Scott C. Idleman, The Religious Freedom
Restoration Act: Pushing the Limits of Legislative Power, 73
Tex. L. Rev. 247 (1994). For arguments pro and con, compare
Douglas Laycock, The Religious Freedom Restoration Act, 1993
B.Y.U. L. Rev. 221 with Christopher L. Eisgruber and
Lawrence G. Sager, Why the Religious Freedom Restoration Act
is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994).
---------------------------------------------------------------------------
[[Page 31]]
[P. 1018, add new note following comma after word
``treatment'' in third sentence of paragraph beginning
after n.253:]
This much was made clear by Church of the Lukumi Babalu
Aye v. City of Hialeah, 508 U.S. 520 (1993), striking down a
city ordinance that prohibited ritual animal sacrifice but
that allowed other forms of animal slaughter.
[P. 1018, add to text at end of third sentence of same
paragraph:]
That the Court views the principle as a general one,
not limited to criminal laws, seems evident from its
restatement in Church of the Lukumi Babalu Aye v. City of
Hialeah: ``our cases establish the general proposition that
a law that is neutral and of general application need not be
justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular
religious practice.'' \14\
---------------------------------------------------------------------------
\14\ 508 U.S. 520, 531 (1993).
---------------------------------------------------------------------------
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and Common Law Background
[P. 1025, add to text at end of section:]
The First Amendment by its terms applies only to
laws enacted by Congress, and not to the actions of private
persons. \15\ This leads to a ``state action'' (or
``governmental action'') limitation similar to that
applicable to the Fourteenth Amendment. \16\ The limitation
has seldom been litigated in the First Amendment context,
but there is no obvious reason why analysis should differ
markedly from Fourteenth Amendment state action analysis.
Both contexts require ``cautious analysis of the quality and
degree of Government relationship to the particular acts in
question.'' \17\ In holding that the National Railroad
Passenger Corporation (Amtrak) is a governmental entity for
purposes of the First Amendment, the Court declared that
``[t]he Constitution constrains governmental action `by
whatever instruments or in whatever modes that action may be
taken.'. . . [a]nd under whatever congressional label.''
\18\ The rela-
[[Page 32]]
tionship of the government to broadcast licensees affords
other opportunities to explore the breadth of ``governmental
action.'' \19\
---------------------------------------------------------------------------
\15\ Through interpretation of the Fourteenth
Amendment, the prohibition extends to the States as well.
See discussion on incorporation, main text, pp. 957-64.
\16\ See discussion on state action, main text, pp.
1786-1802.
\17\ CBS v. Democratic Nat'l Comm., 412 U.S. 94, 115
(1973) (opinion of Chief Justice Burger).
\18\ Lebron v. National R.R. Passenger Corp., 115 S.
Ct. 961, 971 (1995) (quoting Ex parte Virginia, 100 U.S.
339, 346-47 (1880)). The Court refused to be bound by the
statement in Amtrak's authorizing statute that the
corporation is ``not . . . an agency or establishment of the
United States Government.'' This assertion can be effective
``only for purposes of matters that are within Congress'
control,'' the Court explained. ``It is not for Congress to
make the final determination of Amtrak's status as a
governmental entity for purposes of determining the
constitutional rights of citizens affected by its actions.''
115 S. Ct. at 971.
\19\ In CBS v. Democratic Nat'l Comm., 412 U.S. 94
(1973), the Court held that a broadcast licensee could
refuse to carry a paid editorial advertisement. Chief
Justice Burger, joined only by Justices Stewart and
Rehnquist in that portion of his opinion, reasoned that a
licensee's refusal to accept such an ad did not constitute
``governmental action'' for purposes of the First Amendment.
``The First Amendment does not reach acts of private parties
in every instance where the Congress or the [Federal
Communications] Commission has merely permitted or failed to
prohibit such acts.'' Id. at 119.
---------------------------------------------------------------------------
The Doctrine of Prior Restraint
--Obscenity and Prior Restraint
P. 1033, add to n.69:]
But cf. Alexander v. United States, 509 U.S. 544 (1993)
(RICO forfeiture of the entire adult entertainment book and
film business of an individual convicted of obscenity and
racketeering offenses, based on the predicate acts of
selling four magazines and three videotapes, does not
constitute a prior restraint and is not invalid as
``chilling'' protected expression that is not obscene).
Freedom of Belief
--Imposition of Consequences for Holding Certain Beliefs
[P. 1054, add to n.181 following cite to Barclay v.
Florida:]
Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal
sentence may be enhanced because the defendant intentionally
selected his victim on account of the victim's race),
Right of Association
[P. 1061, add to text at end of section:]
When application of a public accommodations law was
viewed as impinging on an organization's ability to present
its message, the Court found a First Amendment violation.
Massachusetts could not require the private organizers of
Boston's St. Patrick's Day parade to allow a group of gays
and lesbians to march as a unit proclaiming its members' gay
and lesbian identity, the Court held in Hurley v. Irish-
American Gay Group. \20\ To do so would require parade
organizers to promote a message they did not wish to
promote. The Roberts and New York City cases were
distinguished as
[[Page 33]]
not involving ``a trespass on the organization's message
itself.'' \21\ Those cases stood for the proposition that
the state could require equal access for individuals to what
was considered the public benefit of organization
membership. But even if individual access to the parade
might similarly be mandated, the Court reasoned, the gay
group ``could nonetheless be refused admission as an
expressive contingent with its own message just as readily
as a private club could exclude an applicant whose manifest
views were at odds with a position taken by the club's
existing members.'' \22\
---------------------------------------------------------------------------
\20\ 115 S. Ct. 2338 (1995).
\21\ Id. at 2351.
\22\ Id.
---------------------------------------------------------------------------
--Political Association
[P. 1063, add to text before first full paragraph on page:]
In 1996 the Court extended Branti and Finkel to
protect independent government contractors. \23\
---------------------------------------------------------------------------
\23\ O'Hare Truck Serv., Inc. v. City of Northlake,
116 S. Ct. 2353 (1996) (allegation that city removed
petitioner's company from list of those offered towing
business on a rotating basis, in retaliation for
petitioner's refusal to contribute to mayor's campaign, and
for his support of mayor's opponent, states a cause of
action under the First Amendment). See also Board of County
Comm'rs v. Umbehr, 116 S. Ct. 2342 (1996) (termination or
non-renewal of a public contract in retaliation for the
contractor's speech on a matter of public concern can
violate the First Amendment).
---------------------------------------------------------------------------
Particular Governmental Regulations That Restrict Expression
[P. 1081, change subheading to:]
--Government as Employer: Political and Other Outside
Activities
[P. 1084, add new paragraph to end of section:]
The Hatch Act cases were distinguished in United
States v. National Treasury Employees Union, \24\ in which
the Court struck down an honoraria ban as applied to lower
level employees of the Federal Government. The honoraria ban
suppressed employees' right to free expression while the
Hatch Act sought to protect that right, and also there was
no evidence of improprieties in acceptance of honoraria by
members of the plaintiff class of federal employees. \25\
The Court emphasized further difficulties with the ``crudely
crafted'' honoraria ban: it was limited to expressive
activities and had no application to other sources of
outside income, it applied
[[Page 34]]
when neither the subjects of speeches and articles nor the
persons or groups paying for them bore any connection to the
employee's job responsibilities, and it exempted a
``series'' of speeches or articles without also exempting
individual articles and speeches. These ``anomalies'' led
the Court to conclude that the ``speculative benefits'' of
the ban were insufficient to justify the burdens it imposed
on expressive activities. \26\
---------------------------------------------------------------------------
\24\ 115 S. Ct. 1003 (1995).
\25\ The plaintiff class consisted of all Executive
Branch employees below grade GS-16. Also covered by the ban
were senior executives, Members of Congress, and other
federal officers, but the possibility of improprieties by
these groups did not justify application of the ban to ``the
vast rank and file of federal employees below grade GS-16.''
\26\ 115 S. Ct. at 1018.
---------------------------------------------------------------------------
--Government as Employer: Free Expression Generally
[P. 1089, add to text following n.113:]
The protections applicable to government employees
have been extended to independent government contractors,
the Court announcing that ``the Pickering balancing test,
adjusted to weigh the government's interests as contractor
rather than as employer, determines the extent of their
protection.'' \27\
---------------------------------------------------------------------------
\27\ Board of County Comm'rs v. Umbehr, 116 S. Ct.
2342, 2346 (1996).
---------------------------------------------------------------------------
[P. 1089, add to n.116:]
In Waters v. Churchill, 114 S. Ct. 1878 (1994), the
Court grappled with what procedural protections may be
required by the First Amendment when public employees are
dismissed on speech-related grounds, but reached no
consensus.
--Government as Regulator of the Electoral Process:
Elections
[P. 1097, add to n.150:]
See also Colorado Republican Campaign Comm. v. FEC, 116
S. Ct. 2309 (1996) (the First Amendment bars application of
the Party Expenditure Provision of the Federal Election
Campaign Act, 2 U.S.C. Sec. 441a(d)(3), to expenditures that
the political party makes independently, without
coordination with the candidate).
Governmental Regulation of Communications Industries
--Commercial Speech
[P. 1116, add to n.12:]
Shapero was distinguished in Florida Bar v. Went For It,
Inc., 115 S. Ct. 2371 (1995), a 5-4 decision upholding a
prohibition on targeted direct-mail solicitations to victims
and their relatives for a 30-day period following an
accident or disaster. The ban struck down in Shapero was far
broader, both in scope and in duration, the Court explained,
and was not supported, as Florida's was, by findings
describing the harms to be prevented by the ban. Dissenting
Justice Kennedy disagreed that there was a valid
distinction, pointing out the Court's previous reliance on
the mode of communication (in-person solicitation versus
mailings) as ``mak[ing] all the difference.'' 115 S. Ct. at
2382 (quoting Shapero, 486 U.S. at 475).
[[Page 35]]
[P. 1116, add to text following n.13:]
, or prohibit a certified public accountant from
holding herself out as a certified financial planner. \28\
---------------------------------------------------------------------------
\28\ Ibanez v. Florida Bd. of Accountancy, 114 S.
Ct. 2084 (1994) (also ruling that Accountancy Board could
not reprimand the CPA, who was also a licensed attorney, for
truthfuly listing her CPA credentials in advertising for her
law practice).
---------------------------------------------------------------------------
[P. 1116, add to text following n.14:]
The Court later refused, however, to extend this
principle to in-person solicitation by certified public
accountants, explaining that CPAs, unlike attorneys, are not
professionally ``trained in the art of persuasion,'' and
that the typical business executive client of a CPA is ``far
less susceptible to manipulation'' than was the accident
victim in Ohralik. \29\ To allow enforcement of such a broad
prophylactic rule absent identification of a serious problem
such as ambulance chasing, the Court explained, would dilute
commercial speech protection ``almost to nothing.'' \30\
---------------------------------------------------------------------------
\29\ Edenfield v. Fane, 507 U.S. 761, 775 (1993).
\30\ Id. at 1803.
---------------------------------------------------------------------------
[P. 1117, delete last two sentences of paragraph continued
from p. 1116, and substitute the following:]
The Court has developed a four-pronged test to
measure the validity of restraints upon commercial
expression.
[P. 1117, add to n.19 following San Francisco Arts &
Athletics cite:]
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995)
(government's interest in curbing strength wars among
brewers is substantial, but interest in facilitating state
regulation of alcohol is not substantial). Contrast United
States v. Edge Broadcasting Co., 509 U.S. 418 (1993),
finding a substantial federal interest in facilitating state
restrictions on lotteries. ``Unlike the situation in Edge
Broadcasting,'' the Coors Court explained, ``the policies of
some states do not prevent neighboring states from pursuing
their own alcohol-related policies within their respective
borders.'' 115 S. Ct. at 1591.
[P. 1118, add to n.20 following Bolger cite:]
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995)
(prohibition on display of alcohol content on beer labels
does not directly and materially advance government's
interest in curbing strength wars among brewers, given the
inconsistencies and ``overall irrationality'' of the
regulatory scheme); Edenfield v. Fane, 507 U.S. 761 (1993)
(Florida's ban on in-person solicitation by certified public
accountants does not directly advance its legitimate
interests in protecting consumers from fraud, protecting
consumer privacy, and maintaining professional independence
from clients).
[P. 1118, add to text following n.20:]
Instead, the regulation must ``directly advance''
the governmental interest. The Court resolves this issue
with reference to ag-
[[Page 36]]
gregate effects, and does not limit its consideration to
effects on the challenging litigant. \31\
---------------------------------------------------------------------------
\31\ United States v. Edge Broadcasting Co., 509
U.S. 418, 427 (1993) (``this question cannot be answered by
limiting the inquiry to whether the governmental interest is
directly advanced as applied to a single person or
entity'').
---------------------------------------------------------------------------
[P. 1118, add to n.21 following Bolger cite:]
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995)
(there are less intrusive alternatives--e.g., direct
limitations on alcohol content of beer--to prohibition on
display of alcohol content on beer label).
[P. 1118, add to n.22:]
In a 1993 opinion the Court elaborated on the difference
between ``reasonable fit'' and least restrictive
alternative. ``A regulation need not be `absolutely the
least severe that will achieve the desired end,' but if
there are numerous and obvious less-burdensome alternatives
to the restriction . . . , that is certainly a relevant
consideration in determining whether the `fit' between ends
and means is reasonable.'' City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 417 n.13 (1993).
[P. 1118, delete remainder of section after n.22, and add
the following:]
The ``reasonable fit'' standard has some teeth, the
Court made clear in City of Cincinnati v. Discovery Network,
Inc., \32\ striking down a city's prohibition on
distribution of ``commercial handbills'' through
freestanding newsracks located on city property. The city's
aesthetic interest in reducing visual clutter was furthered
by reducing the total number of newsracks, but the
distinction between prohibited ``commercial'' publications
and permitted ``newspapers'' bore ``no relationship
whatsoever'' to this legitimate interest. \33\ The city
could not, the Court ruled, single out commercial speech to
bear the full onus when ``all newsracks, regardless of
whether they contain commercial or noncommercial
publications, are equally at fault.'' \34\ On the other
hand, the Court upheld a federal law that prohibited
broadcast of lottery advertisements by a broadcaster in a
state that prohibits lotteries, while allowing broadcast of
such ads by stations in states that sponsor lotteries. There
was a ``reasonable fit'' between the restriction and the
asserted federal interest in supporting state anti-gambling
policies without unduly interfering with policies of
neighboring states that promote lotteries. \35\ The
prohibition ``directly served'' the congressional interest,
and could be applied to a broadcaster whose principal
audience was in
[[Page 37]]
an adjoining lottery state, and who sought to run ads for
that state's lottery. \36\
---------------------------------------------------------------------------
\32\ 507 U.S. 410 (1993). See also Edenfield v.
Fane, 507 U.S. 761 (1993), decided the same Term, relying on
the ``directly advance'' third prong of Central Hudson to
strike down a ban on in-person solicitation by certified
public accountants.
\33\ Id. at 1514.
\34\ Id. at 1515. The Court also noted the
``minute'' effect of removing 62 ``commercial'' newsracks
while 1,500 to 2,000 other newsracks remained in place. Id.
at 1510.
\35\ United States v. Edge Broadcasting Co., 509
U.S. 418 (1993).
\36\ Id. at 2704.
---------------------------------------------------------------------------
In a 1986 decision the Court asserted that ``the
greater power to completely ban casino gambling necessarily
includes the lesser power to ban advertising of casino
gambling.'' \37\ Subsequently, however, the Court has
eschewed reliance on Posadas, \38\ and it seems doubtful
that the Court would again embrace the broad principle that
government may ban all advertising of an activity that it
permits but has power to prohibit. Indeed, the Court's very
holding in 44 Liquormart, Inc. v. Rhode Island, \39\
striking down the State's ban on advertisements that provide
truthful information about liquor prices, is inconsistent
with the general proposition. A Court plurality in 44
Liquormart squarely rejected Posadas, calling it
``erroneous,'' declining to give force to its ``highly
deferential approach,'' and proclaiming that a state ``does
not have the broad discretion to suppress truthful,
nonmisleading information for paternalistic purposes that
the Posadas majority was willing to tolerate.'' \40\ Four
other Justices concluded that Posadas was inconsistent with
the ``closer look'' that the Court has since required in
applying the principles of Central Hudson. \41\
---------------------------------------------------------------------------
\37\ Posadas de Puerto Rico Assocs. v. Tourism Co.
of Puerto Rico, 478 U.S. 328, 345-46 (1986). For discussion
of the case, see P. Kurland, Posadas de Puerto Rico v.
Tourism Company: ``'Twas Strange, 'Twas Passing Strange;
'Twas Pitiful, 'Twas Wondrous Pitiful,'' 1986 Sup. Ct. Rev.
1.
\38\ In Rubin v. Coors Brewing Co., 115 S. Ct. 1585
(1995) (invalidating a federal ban on revealing alcohol
content on malt beverage labels), the Court rejected
reliance on Posadas, pointing out that the statement in
Posadas had been made only after a determination that the
advertising could be upheld under Central Hudson. The Court
found it unnecessary to consider the greater-includes-lesser
argument in United States v. Edge Broadcasting Co., 509 U.S.
418, 427 (1993), upholding through application of Central
Hudson principles a ban on broadcast of lottery ads.
\39\ 116 S. Ct. 1495 (1996).
\40\ 116 S. Ct. at 1511-14 (opinion of Stevens,
joined by Justices Kennedy, Thomas, and Ginsburg). The
Stevens opinion also dismissed the Posadas ``greater-
includes-the-lesser argument'' as ``inconsistent with both
logic and well-settled doctrine,'' pointing out that the
First Amendment ``presumes that attempts to regulate speech
are more dangerous than attempts to regulate conduct.'' Id.
at 1512.
\41\ 116 S. Ct. at 1522 (concurring opinion of
O'Connor, joined by Chief Justice Rehnquist and by Justices
Souter and Breyer).
---------------------------------------------------------------------------
The ``different degree of protection'' accorded
commercial speech has a number of consequences. Somewhat
broader times, places, and manner regulations are to be
tolerated. \42\ The rule
[[Page 38]]
against prior restraints may be inapplicable, \43\ and
disseminators of commercial speech are not protected by the
overbreadth doctrine. \44\
---------------------------------------------------------------------------
\42\ Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates
v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But in
Linmark Associates v. Township of Willingboro, 431 U.S. 85,
93-94 (1977), the Court refused to accept a times, places,
and manner defense of an ordinance prohibiting ``For Sale''
signs on residential lawns. First, ample alternative
channels of communication were not available, and second,
the ban was seen rather as a content limitation.
\43\ Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976);
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447
U.S. 557, 571 n.13 (1980).
\44\ Bates v. State Bar of Arizona, 433 U.S. 350,
379-81 (1977); Central Hudson Gas & Electric Co. v. Public
Service Comm'n, 477 U.S. 557, 565 n.8 (1980).
---------------------------------------------------------------------------
Different degrees of protection may also be
discerned among different categories of commercial speech.
The first prong of the Central Hudson test means that false,
deceptive, or misleading advertisements need not be
permitted; government may require that a commercial message
appear in such a form, or include such additional
information, warnings, and disclaimers, as are necessary to
prevent deception. \45\ But even truthful, non-misleading
commercial speech may be regulated, and the validity of such
regulation is tested by application of the remaining prongs
of the Central Hudson test. The test itself does not make
further distinctions based on the content of the commercial
message or the nature of the governmental interest (that
interest need only be ``substantial''). Recent decisions
suggest, however, that further distinctions may exist.
Measures aimed at preserving ``a fair bargaining process''
between consumer and advertiser \46\ may be more likely to
pass the test \47\ than regulations designed to implement
general health, safety, or moral concerns. \48\ As the
governmental interest becomes further
[[Page 39]]
removed from protecting a fair bargaining process, it may
become more difficult to establish the absence of less
burdensome regulatory alternatives and the presence of a
``reasonable fit'' between the commercial speech restriction
and the governmental interest. \49\
---------------------------------------------------------------------------
\45\ Bates v. State Bar of Arizona, 433 U.S. 350,
383-84 (1977); Ohralik v. Ohio State Bar Ass'n, 436 U.S.
447, 456 (1978). Requirements that advertisers disclose more
information than they otherwise choose to are upheld ``as
long as [they] are reasonably related to the State's
interest in preventing deception of consumers,'' the Court
explaining that ``[t]he right of a commercial speaker not to
divulge accurate information regarding his services is not
. . . a fundamental right'' requiring strict scrutiny of the
disclosure requirement. Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding
requirement that attorney's contingent fees ad mention that
unsuccessful plaintiffs might still be liable for court
costs).
\46\ 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct.
1495, 1507 (1996) (opinion of Justice Stevens, joined by
Justices Kennedy and Ginsburg).
\47\ See, e.g., Ohralik v. Ohio State Bar Ass'n, 436
U.S. 447, 465 (1978) (upholding ban on in-person
solicitation by attorneys due in part to the ``potential for
overreaching'' when a trained advocate ``solicits an
unsophisticated, injured, or distressed lay person'').
\48\ Compare United States v. Edge Broadcasting Co.,
509 U.S. 418 (1993) (upholding federal law supporting state
interest in protecting citizens from lottery information)
and Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2379
(1995) (upholding a 30-day ban on targeted, direct-mail
solicitation of accident victims by attorneys, not because
of any presumed susceptibility to overreaching, but because
the ban ``forestall[s] the outrage and irritation with the
. . . legal profession that the [banned] solicitation . . .
has engendered'') with Rubin v. Coors Brewing Co., 115 S.
Ct. 1585 (1995) (striking down federal statute prohibiting
display of alcohol content on beer labels) and 44
Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996)
(striking down state law prohibiting display of retail
prices in ads for alcoholic beverages).
\49\ Justice Stevens has criticized the Central
Hudson test because it seemingly allows regulation of any
speech propounded in a commercial context regardless of the
content of that speech. ``[A]ny description of commercial
speech that is intended to identify the category of speech
entitled to less First Amendment protection should relate to
the reasons for permitting broader regulation: namely,
commercial speech's potential to mislead.'' Rubin v. Coors
Brewing Co., 115 S. Ct. 1585, 1595 (1995) (concurring
opinion). The Justice repeated these views in 1996: ``when a
State entirely prohibits the dissemination of truthful,
nonmisleading commercial messages for reasons unrelated to
the preservation of a fair bargaining process, there is far
less reason to depart from the rigorous review that the
First Amendment generally demands.'' 44 Liquormart, Inc. v.
Rhode Island, 116 S. Ct. 1495, 1507 (1996) (a portion of the
opinion joined by Justices Kennedy and Ginsburg).
---------------------------------------------------------------------------
--Radio and Television
[P. 1126, delete last paragraph on page:]
--Governmentally Compelled Right of Reply to Newspapers
[P. 1127, add to n.65:]
See also Hurley v. Irish-American Gay Group, 115 S. Ct.
2338 (1995) (state may not compel parade organizer to allow
participation by a parade unit proclaiming message that
organizer does not wish to endorse).
[P. 1127, add new section following n.65:]
--Regulation of Cable Television
The Court has recognized that cable television
``implicates First Amendment interests,'' since a cable
operator communicates ideas through selection of original
programming and through exercise of editorial discretion in
determining which stations to include in its offering. \50\
Moreover, ``settled principles of . . . First Amendment
jurisprudence'' govern review of cable regulation; cable is
not limited by ``scarce'' broadcast frequencies and does not
require the same less rigorous standard of review that the
Court applies to regulation of broadcasting. \51\ Cable
does, however, have unique characteristics that justify
regulations that single out cable for special
[[Page 40]]
treatment. \52\ The Court in Turner Broadcasting System v.
FCC \53\ upheld federal statutory requirements that cable
systems carry local commercial and public television
stations. Although these ``must-carry'' requirements
``distinguish between speakers in the television programming
market,'' they do so based on the manner of transmission and
not on the content the messages conveyed, and hence are
``content neutral.'' \54\ The regulations could therefore be
measured by the ``intermediate level of scrutiny'' set forth
in United States v. O'Brien. \55\ Two years later, however,
a splintered Court could not agree on what standard of
review to apply to content-based restrictions of cable
broadcasts. Striking down a requirement that cable operators
must, in order to protect children, segregate and block
programs with patently offensive sexual material, a Court
majority in Denver Area Educational Telecommunications
Consortium v. FCC, \56\ found it unnecessary to determine
whether strict scrutiny or some lesser standard applies,
since the restriction was deemed invalid under any of the
alternative tests. There was no opinion of the Court on the
other two holdings in the case, \57\ and a plurality \58\
rejected assertions that public forum analysis, \59\ or a
rule giving cable operators' editorial rights ``general
primacy'' over the rights of programmers and viewers, \60\
should govern.
---------------------------------------------------------------------------
\50\ City of Los Angeles v. Preferred
Communications, 476 U.S. 488 (1986) (leaving for future
decision how the operator's interests are to be balanced
against a community's interests in limiting franchises and
preserving utility space); Turner Broadcasting System v.
FCC, 114 S. Ct. 2445, 2456 (1994).
\51\ Turner Broadcasting System v. FCC, 114 S. Ct.
2445, 2456-57 (1994).
\52\ Id. at 2468 (referring to the ``bottleneck
monopoly power'' exercised by cable operators in determining
which networks and stations to carry, and to the resulting
dangers posed to the viability of broadcast television
stations). See also Leathers v. Medlock, 499 U.S. 439 (1991)
(application of state gross receipts tax to cable industry
permissible even though other segments of the communications
media were exempted).
\53\ 114 S. Ct. 2445 (1994).
\54\ Id. at 2460. ``Deciding whether a particular
regulation is content-based or content-neutral is not always
a simple task,'' the Court confessed. Id. at 2459. Indeed,
dissenting Justice O'Connor, joined by Justices Scalia,
Ginsburg, and Thomas, viewed the rules as content-based. Id.
at 2475-79.
\55\ 391 U.S. 367, 377 (1968). The Court remanded
Turner for further factual findings relevant to the O'Brien
test.
\56\ 116 S. Ct. 2374, 2391 (1996) (invalidating
Sec. 10(b) of the Cable Television Consumer Protection and
Competition Act of 1992).
\57\ Upholding Sec. 10(a) of the Act, which permits
cable operators to prohibit indecent material on leased
access channels; and striking down Sec. 10(c), which permits
a cable operator to prevent transmission of ``sexually
explicit'' programming on public access channels.
\58\ This section of Justice Breyer's opinion was
joined by Justices Stevens, O'Connor, and Souter. 116 S. Ct.
at 2384.
\59\ Justice Kennedy, joined by Justice Ginsburg,
advocated this approach. 116 S. Ct. at 2409, and took the
plurality to task for its ``evasion of any clear legal
standard.'' Id. at 2405.
\60\ Justice Thomas, joined by Chief Justice
Rehnquist and Justice Scalia, advocated this approach.
---------------------------------------------------------------------------
[[Page 41]]
Government Restraint of Content of Expression
--Group Libel, Hate Speech
[P. 1136, add to n.111:]
On the other hand, the First Amendment does permit
enhancement of a criminal penalty based on the defendant's
motive in selecting a victim of a particular race. Wisconsin
v. Mitchell, 508 U.S. 476 (1993). The law has long
recognized motive as a permissible element in sentencing,
the Court noted. Id. at 2199. R.A.V. was distinguished as
involving a limitation on ``speech'' rather than conduct,
and because the state might permissibly conclude that bias-
inspired crimes inflict greater societal harm than do non-
bias inspired crimes (e.g., they are more likely to provoke
retaliatory crimes). Id. at 2201. See generally Laurence H.
Tribe, The Mystery of Motive, Private and Public: Some Notes
Inspired by the Problems of Hate Crime and Animal Sacrifice,
1993 Sup. Ct. Rev. 1.
--Obscenity
[P. 1152, add to n.14:]
None of these strictures apply, however, to forfeitures
imposed as part of a criminal penalty. Alexander v. United
States, 509 U.S. 544 (1993) (upholding RICO forfeiture of
the entire adult entertainment book and film business of an
individual convicted of obscenity and racketeering
offenses). Justice Kennedy, dissenting in Alexander,
objected to the ``forfeiture of expressive material that had
not been adjudged to be obscene.'' Id. at 2786.
--Nonobscene But Sexually Explicit and Indecent Expression
[P. 1161, add to n.61:]
Similar rules apply in regulation of cable TV. In Denver
Area Educ. Tel. Consortium v. FCC, 116 S. Ct. 2374, 2391
(1996), the Court, acknowledging that protection of children
from sexually explicit programming is a ``compelling''
governmental interest (but refusing to determine whether
strict scrutiny applies), nonetheless struck down a
requirement that cable operators segregate and block
indecent programming on leased access channels. The
segregate and block restrictions, which included a
requirement that a request for access be in writing, and
which allowed for up to 30 days' delay in blocking or
unblocking a channel, were not sufficiently protective of
adults' speech/viewing interests to be considered either
narrowly or reasonably tailored to serve the government's
compelling interest in protecting children.
Speech Plus
--The Public Forum
[P. 1167, add to n.98 following cite to Niemotko v.
Maryland:]
Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440
(1995) (denial of permission to Ku Klux Klan, allegedly in
order to avoid Establishment Clause violation, to place a
cross in plaza on grounds of state capitol); Rosenberger v.
University of Virginia, 115 S. Ct. 2510 (1995) (University's
subsidy for printing costs of student publications,
available for student ``news, information, opinion,
entertainment, or academic communications,'' could not be
withheld because of the religious content of a student
publication); Lamb's Chapel v. Center Moriches School Dist.,
508 U.S. 384 (1993) (school district rule prohibiting after-
hours use of school property for
[[Page 42]]
showing of a film presenting a religious perspective on
child-rearing and family values, but allowing after-hours
use for non-religious social, civic, and recreational
purposes).
--Public Issue Picketing and Parading
P. 1179, add to text at end of section:]
More recently, disputes arising from anti-abortion
protests outside abortion clinics have occasioned another
look at principles distinguishing lawful public
demonstrations from proscribable conduct. In Madsen v.
Women's Health Center, \61\ the Court refined principles
governing issuance of ``content-neutral'' injunctions that
restrict expressive activity. \62\ The appropriate test, the
Court stated, is ``whether the challenged provisions of the
injunction burden no more speech than necessary to serve a
significant governmental interest.'' \63\ Regular time,
place, and manner analysis (requiring that regulation be
narrowly tailored to serve a significant governmental
interest) ``is not sufficiently rigorous,'' the Court
explained, because injunctions create greater risk of
censorship and discriminatory application, and because of
the established principle that an injunction should be no
broader than necessary to achieve its desired goals.'' \64\
Applying its new test, the Court upheld an injunction
prohibiting protesters from congregating, picketing,
patrolling, demonstrating, or entering any portion of the
public right-of-way within 36 feet of an abortion clinic.
Similarly upheld were noise restrictions designed to ensure
the health and well-being of clinic patients. Other aspects
of the injunction, however, did not pass the test. Inclusion
of private property within the 36-foot buffer was not
adequately justified, nor was inclusion in the noise
restriction of a ban on ``images observable'' by clinic
patients. A ban on physically approaching any person within
300 feet of the clinic unless that person indicated a desire
to communicate burdened more speech than necessary. Also, a
ban on demonstrating within 300 feet of the residences of
clinic staff was not sufficiently justified, the restriction
covering a much larger zone than an earlier residential
picketing ban that the Court had upheld. \65\
---------------------------------------------------------------------------
\61\ 114 S. Ct. 2516 (1994).
\62\ The Court rejected the argument that the
injunction was necessarily content-based or viewpoint-based
because it applied only to anti-abortion protesters. ``An
injunction by its very nature applies only to a particular
group (or individuals). . . . It does so, however, because
of the group's past actions in the context of a specific
dispute.'' There had been no similarly disruptive
demonstrations by pro-abortion factions at the abortion
clinic. Id. at 2523.
\63\ Id. at 2525.
\64\ Id. at 2524-25.
\65\ Referring to Frisby v. Schultz, 487 U.S. 474
(1988).
---------------------------------------------------------------------------
[[Page 43]]
Different types of issues were presented by Hurley
v. Irish-American Gay Group, \66\ in which the Court held
that a state's public accommodations law could not be
applied to compel private organizers of a St. Patrick's Day
parade to accept in the parade a unit that would proclaim a
message that the organizers did not wish to promote. Each
participating unit affects the message conveyed by the
parade organizers, the Court observed, and application of
the public accommodations law to the content of the
organizers' message contravened the ``fundamental rule . . .
that a speaker has the autonomy to choose the content of his
own message.'' \67\
---------------------------------------------------------------------------
\66\ 115 S. Ct. 2338 (1995).
\67\ Id. at 2347.
---------------------------------------------------------------------------
Leafleting, Handbilling, and the Like
[P. 1181, add to text after n.168:]
Talley's anonymity rationale was strengthened in
McIntyre v. Ohio Elections Comm'n, \68\ invalidating Ohio's
prohibition on the distribution of anonymous campaign
literature. There is a ``respected tradition of anonymity in
the advocacy of political causes,'' the Court noted, and
neither of the interests asserted by Ohio justified the
limitation. The State's interest in informing the electorate
was ``plainly insufficient,'' and, while the more weighty
interest in preventing fraud in the electoral process may be
accomplished by a direct prohibition, it may not be
accomplished indirectly by an indiscriminate ban on a whole
category of speech. Ohio could not apply the prohibition,
therefore, to punish anonymous distribution of pamphlets
opposing a referendum on school taxes.
---------------------------------------------------------------------------
\68\ 115 S. Ct. 1511 (1995).
---------------------------------------------------------------------------
[P. 1181, substitute for first full paragraph on page:]
The handbilling cases were distinguished in City
Council v. Taxpayers for Vincent, \69\ in which the Court
held that a city may prohibit altogether the use of utility
poles for posting of signs. While a city's concern over
visual blight could be addressed by an anti-littering
ordinance not restricting the expressive activity of
distributing handbills, in the case of utility pole signs
``it is the medium of expression itself'' that creates the
visual blight. Hence, the city's prohibition, unlike a
prohibition on distributing handbills, was narrowly tailored
to curtail no more speech than necessary to accomplish the
city's legitimate purpose. \70\ Ten years later, how-
[[Page 44]]
ever, the Court unanimously invalidated a town's broad ban
on residential signs that permitted only residential
identification signs, ``for sale'' signs, and signs warning
of safety hazards. \71\ Prohibiting homeowners from
displaying political, religious, or personal messages on
their own property entirely foreclosed ``a venerable means
of communication that is unique and important,'' and that is
``an unusually cheap form of communication'' without viable
alternatives for many residents. \72\ The ban was thus
reminiscent of total bans on leafleting, distribution of
literature, and door-to-door solicitation that the Court had
struck down in the 1930s and 1940s. The prohibition in
Vincent was distinguished as not removing a ``uniquely
valuable or important mode of communication,'' and as not
impairing citizens' ability to communicate. \73\
---------------------------------------------------------------------------
\69\ 466 U.S. 789 (1984).
\70\ Justice Brennan argued in dissent that adequate
alternative forms of communication were not readily
available because handbilling or other person-to-person
methods would be substantially more expensive, and that the
regulation for the sake of aesthetics was not adequately
justified.
\71\ City of Ladue v. Gilleo, 114 S. Ct. 2038
(1994).
\72\ Id. at 2045, 2046.
\73\ Id. at 2045. Ladue's legitimate interest in
reducing visual clutter could be addressed by ``more
temperate'' measures, the Court suggested. Id. at 2047.
[[Page 45]]
SECOND AMENDMENT
[P. 1194, add to n.7:]
See also Hickman v. Block, 81 F.3d 98 (9th Cir.)
(plaintiff lacked standing to challenge denial of permit to
carry concealed weapon, because Second Amendment is a right
held by states, not by private citizens), cert. denied 117
S. Ct. 276 (1996); United States v. Gomez, 92 F.3d 770, 775
n.7 (9th Cir. 1996) (interpreting federal prohibition on
possession of firearm by a felon as having a justification
defense ``ensures that [the provision] does not collide with
the Second Amendment'').
[[Page 47]]
FOURTH AMENDMENT
History and Scope of the Amendment
--The Interest Protected
[P. 1206, add to n.38:]
Property rights are still protected by the Amendment,
however. A ``seizure'' of property can occur when there is
some meaningful interference with an individual's possessory
interests in that property, and regardless of whether there
is any interference with the individual's privacy interest.
Soldal v. Cook County, 506 U.S. 56 (1992) (a seizure
occurred when sheriff's deputies assisted in the
disconnection and removal of a mobile home in the course of
an eviction from a mobile home park). The reasonableness of
a seizure, however, is an additional issue that may still
hinge on privacy interests. United States v. Jacobsen, 466
U.S. 109, 120-21 (1984) (DEA agents reasonably seized
package for examination after private mail carrier had
opened the damaged package for inspection, discovered
presence of contraband, and informed agents).
[P. 1214, add to text following n.82:]
In another unusual case, the Court held that a
sheriff's assistance to a trailer park owner in
disconnecting and removing a mobile home constituted a
``seizure'' of the home. \1\
---------------------------------------------------------------------------
\1\ Soldal v. Cook County, 506 U.S. 56, 61 (1992)
(home ``was not only seized, it literally was carried away,
giving new meaning to the term `mobile home''').
---------------------------------------------------------------------------
Searches and Seizures Pursuant to Warrant
--Probable Cause
[P. 1218, add to n.98:]
Similarly, the preference for proceeding by warrant
leads to a stricter rule for appellate review of trial court
decisions on warrantless stops and searches than is employed
to review probable cause to issue a warrant. Ornelas v.
United States, 116 S. Ct. 1657 (1996) (determinations of
reasonable suspicion to stop and probable cause to search
without a warrant should be subjected to de novo appellate
review).
--Execution of Warrants
[P. 1227, add to text following sentence containing n.158:]
In Wilson v. Arkansas, \2\ the Court determined that
the common law ``knock and announce'' rule is an element of
the Fourth Amendment reasonableness inquiry. The rule does
not, however, require announcement under all circumstances.
The presumption in favor of announcement yields under
various circumstances, including those posing a threat of
physical violence to officers, those in which a prisoner has
escaped and taken refuge in his dwelling,
[[Page 48]]
and those in which officers have reason to believe that
destruction of evidence is likely.
---------------------------------------------------------------------------
\2\ 115 S. Ct. 1914 (1995).
---------------------------------------------------------------------------
Valid Searches and Seizures Without Warrants
--Detention Short of Arrest--Stop-and-Frisk
[P. 1230, add to text following n.12:]
If, in the course of a weapons frisk, ``plain
touch'' reveals presence of an object that the officer has
probable cause to believe is contraband, the officer may
seize that object. \3\ The Court viewed the situation as
analogous to that covered by the ``plain view'' doctrine:
obvious contraband may be seized, but a search may not be
expanded to determine whether an object is contraband. \4\
---------------------------------------------------------------------------
\3\ Minnesota v. Dickerson, 508 U.S. 366 (1993).
\4\ Id. at 2237, 2139. In Dickerson the Court held
that seizure of a small plastic container that the officer
felt in the suspect's pocket was not justified; the officer
should not have continued the search, manipulating the
container with his fingers, after determining that no weapon
was present.
---------------------------------------------------------------------------
--Vehicular Searches
[P. 1239, add to n.62:]
An automobile's ``ready mobility [is] an exigency
sufficient to excuse failure to obtain a search warrant once
probable cause is clear''; there is no need to find the
presence of ``unforeseen circumstances'' or other additional
exigency. Pennsylvania v. Labron, 116 S. Ct. 2485, 2487
(1996).
[P. 1239, delete text accompanying n.63, and substitute the
following:]
and they may not make random stops of vehicles on
the roads, but instead must base stops of individual
vehicles on probable cause or some ``articulable and
reasonable suspicion'' \5\ of traffic or safety violation or
some other criminal activity. \6\
---------------------------------------------------------------------------
\5\ Delaware v. Prouse, 440 U.S. 648, 663 (1979)
(discretionary random stops of motorists to check driver's
license and registration papers and safety features of cars
constitute Fourth Amendment violation); United States v.
Brignoni-Ponce, 422 U.S. 873 (1975) (violation for roving
patrols on lookout for illegal aliens to stop vehicles on
highways near international borders when only ground for
suspicion is that occupants appear to be of Mexican
ancestry). In Prouse, the Court cautioned that it was not
precluding the States from developing methods for spot
checks, such as questioning all traffic at roadblocks, that
involve less intrusion or that do not involve unconstrained
exercise of discretion. 440 U.S. at 663.
\6\ An officer who observes a traffic violation may
stop a vehicle even if his real motivation is to investigate
for evidence of other crime. Whren v. United States, 116 S.
Ct. 1769 (1996). The existence of probable cause to believe
that a traffic violation has occurred establishes the
constitutional reasonableness of traffic stops regardless of
the actual motivation of the officers involved, and
regardless of whether it is customary police practice to
stop motorists for the violation observed.
---------------------------------------------------------------------------
[[Page 49]]
--Drug Testing
[P. 1249, substitute for paragraph beginning after n.128:]
Emphasizing the ``special needs'' of the public
school context, reflected in the ``custodial and tutelary''
power that schools exercise over students, and also noting
schoolchildren's diminished expectation of privacy, the
Court in Vernonia School District v. Acton \7\ upheld a
school district's policy authorizing random urinalysis drug
testing of students who participate in interscholastic
athletics. The Court redefined the term ``compelling''
governmental interest. The phrase does not describe a
``fixed, minimum quantum of governmental concern,'' the
Court explained, but rather ``describes an interest which
appears important enough to justify the particular search at
hand.'' \8\ Applying this standard, the Court concluded that
``deterring drug use by our Nation's schoolchildren is at
least as important as enhancing efficient enforcement of the
Nation's laws against the importation of drugs . . . or
deterring drug use by engineers and trainmen.'' \9\ On the
other hand, the interference with privacy interests was not
great, the Court decided, since schoolchildren are routinely
required to submit to various physical examinations and
vaccinations. Moreover, ``[l]egitimate privacy expectations
are even less [for] student athletes, since they normally
suit up, shower, and dress in locker rooms that afford no
privacy, and since they voluntarily subject themselves to
physical exams and other regulations above and beyond those
imposed on non-athletes. The Court ``caution[ed] against the
assumption that suspicionless drug testing will readily pass
muster in other contexts,'' identifying as ``the most
significant element'' in Vernonia the fact that the policy
was implemented under the government's responsibilities as
guardian and tutor of schoolchildren. \10\
---------------------------------------------------------------------------
\7\ 115 S. Ct. 2386 (1995).
\8\ Id. at 2394-95.
\9\ Id. at 2395.
\10\ Id. at 2396.
---------------------------------------------------------------------------
Enforcing the Fourth Amendment: The Exclusionary Rule
--Narrowing Application of the Exclusionary Rule
[P. 1267, add to n.211:]
Similarly, the exclusionary rule does not require
suppression of evidence that was seized incident to an
arrest that was the result of a clerical error by a court
clerk. Arizona v. Evans, 115 S. Ct. 1185 (1995).
[[Page 50]]
--Operation of the Rule: Standing
[P. 1270, add to n.229 following cite to Rakas v. Illinois:]
United States v. Padilla, 508 U.S. 77 (1993) (only
persons whose privacy or property interests are violated may
object to a search on Fourth Amendment grounds; exerting
control and oversight over property by virtue of
participation in a criminal conspiracy does not alone
establish such interests).
[[Page 51]]
FIFTH AMENDMENT
RIGHTS OF PERSONS
DOUBLE JEOPARDY
Development and Scope
[P. 1282, n.59, delete citation to One Lot Emerald Cut
Stones case:]
[P. 1283, n.60, delete reference to 89 Firearms case and
add:]
Montana Dep't of Revenue v. Kurth Ranch, 114 S. Ct. 1937
(1994) (tax on possession of illegal drugs, ``to be
collected only after any state or federal fines or
forfeitures have been satisfied,'' constitutes punishment
for purposes of double jeopardy).
[P. 1283, add to text following n.60:]
Ordinarily, however, civil in rem forfeiture
proceedings may not be considered punitive for purposes of
double jeopardy analysis. \1\
---------------------------------------------------------------------------
\1\ United States v. Ursery, 116 S. Ct. 2135 (1996)
(forfeitures, pursuant to 19 U.S.C. Sec. 981 and 21 U.S.C.
Sec. 881, of property used in drug and money laundering
offenses, are not punitive). The Court in Ursery applied
principles that had been set forth in Various Items of
Personal Property v. United States, 282 U.S. 577 (1931)
(forfeiture of distillery used in defrauding government of
tax on spirits); One Lot Emerald Cut Stones v. United
States, 409 U.S. 232 (1972) (per curiam) (forfeiture of
jewels brought into United States without customs
declaration); and United States v. One Assortment of 89
Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18
U.S.C. Sec. 924(d), of firearms ``used or intended to be
used in'' firearms offenses). A two-part inquiry is
followed. First, the Court inquires whether Congress
intended the forfeiture proceeding to be civil or criminal.
Then, if Congress intended that the proceeding be civil, the
court determines whether there is nonetheless the ``clearest
proof'' that the sanction is ``so punitive'' as to transform
it into a criminal penalty. 89 Firearms, supra, 465 U.S. at
366.
---------------------------------------------------------------------------
Reprosecution Following Acquittal
--Acquittal by Jury
[P. 1290, add note to end of first sentence in section:]
What constitutes a jury acquittal may occasionally be
uncertain. In Schiro v. Farley, 114 S. Ct. 783 (1994), the
Court ruled that a jury's action in leaving the verdict
sheet blank on all but one count did not amount to an
acquittal on those counts, and that consequently conviction
on the remaining count, alleged to be duplicative of one of
the blank counts, could not constitute double jeopardy. In
any event, the Court added, no successive prosecution
violative of double jeopardy could result from an initial
sentencing proceeding in the course of an initial
prosecution.
[[Page 52]]
``For the Same Offence''
--Legislative Discretion as to Multiple Sentences
[P. 1299, add to n.142:]
But cf. Rutledge v. United States, 116 S. Ct. 1241
(1996) (21 U.S.C. Sec. 846, prohibiting conspiracy to commit
drug offenses, does not require proof of any fact that is
not also a part of the continuing criminal enterprise
offense under 21 U.S.C. Sec. 848, so there are not two
separate offenses).
--Successive Prosecutions for the Same Offense
[P. 1300, substitute for the two sentences immediately
following n.150:]
In 1990, the Court modified the Brown approach,
stating that the appropriate focus is on same conduct rather
than same evidence. \2\ That interpretation held sway only
three years, however, before being repudiated as ``wrong in
principle [and] unstable in application.'' \3\
---------------------------------------------------------------------------
\2\ Grady v. Corbin, 495 U.S. 508 (1990) (holding
that the state could not prosecute a traffic offender for
negligent homicide because it would attempt to prove conduct
for which the defendant had already been prosecuted--driving
while intoxicated and failure to keep to the right of the
median). A subsequent prosecution is barred, the Court
explained, if the government, to establish an essential
element of an offense, will prove conduct that constitutes
an offense for which the defendant has already been
prosecuted. Id. at 521.
\3\ United States v. Dixon, 509 U.S. 688, 709 (1993)
(applying Blockburger test to determine whether prosecution
for a crime, following conviction for criminal contempt for
violation of a court order prohibiting that crime,
constitutes double jeopardy).
---------------------------------------------------------------------------
[P. 1301, add to n.154:]
The fact that Felix constituted a ``large exception'' to
Grady was one of the reasons the Court cited in overruling
Grady. United States v. Dixon, 509 U.S. 688, 709-10 (1993).
[P. 1301, add to text following n.154:]
For double jeopardy purposes, a defendant is
``punished . . . only for the offense of which [he] is
convicted''; a later prosecution or later punishment is not
barred simply because the underlying criminal activity has
been considered at sentencing for a different offense. \4\
---------------------------------------------------------------------------
\4\ Witte v. United States, 115 S. Ct. 2199, 2204
(1995) (consideration of defendant's alleged cocaine
dealings in determining sentence for marijuana offenses does
not bar subsequent prosecution on cocaine charges).
---------------------------------------------------------------------------
[[Page 53]]
SELF-INCRIMINATION
Development and Scope
[P. 1309, add to n.190:]
In determining whether a state prisoner is entitled to
federal habeas corpus relief because the prosecution
violated due process by using his post-Miranda silence for
impeachment purposes at trial, the proper standard for
harmless-error review is that announced in Kotteakos v.
United States, 328 U.S. 750, 776 (1946)--whether the due
process error ``had substantial and injurious effect or
influence in determining the jury's verdict--not the
stricter ``harmless beyond a reasonable doubt'' standard of
Chapman v. California, 386 U.S. 18, 24 (1967), applicable on
direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993).
Confessions: Police Interrogation, Due Process, and Self-
Incrimination
--Miranda v. Arizona
[P. 1332, substitute for paragraph that carries over to P.
1333:]
Although the Court had suggested in 1974 that most
Miranda claims could be disallowed in federal habeas corpus
cases, \5\ such a course was squarely rejected in 1993. The
Stone v. Powell \6\ rule, precluding federal habeas corpus
review of a state prisoner's claim that his conviction rests
on evidence obtained through an unconstitutional search or
seizure, does not extend to preclude federal habeas review
of a state prisoner's Miranda claim, the Court ruled in
Withrow v. Williams. \7\ The Miranda rule differs from the
Mapp v. Ohio \8\ exclusionary rule denied enforcement in
Stone, the Court explained. While both are prophylactic
rules, Miranda unlike Mapp, safeguards a fundamental trial
right, the privilege against self-incrimination. Miranda
also protects against the use at trial of unreliable
statements, hence, unlike Mapp, relates to the correct
ascertainment of guilt. \9\ A further consideration was that
eliminating review of Miranda claims would not significantly
reduce federal habeas review of state convictions, since
most Miranda claims could be recast in terms of due process
denials resulting from admission of involuntary confessions.
\10\
---------------------------------------------------------------------------
\5\ In Michigan v. Tucker, 417 U.S. 433, 439
(1974), the Court had suggested a distinction between a
constitutional violation and a violation of ``the
prophylactic rules developed to protect that right.'' The
actual holding in Tucker, however, had turned on the fact
that the interrogation had preceded the Miranda decision and
that warnings--albeit not full Miranda warnings--had been
given.
\6\ 428 U.S. 465 (1976).
\7\ 507 U.S. 680 (1993).
\8\ 367 U.S. 643 (1961).
\9\ 507 U.S. at 691-92.
\10\ Id. at 693.
---------------------------------------------------------------------------
[[Page 54]]
[P. 1334, add to text following n.324:]
Whether a person is ``in custody'' is an objective
test assessed in terms of how a reasonable person in the
suspect's shoes would perceive his or her freedom to leave;
a police officer's subjective and undisclosed view that a
person being interrogated is a suspect is not relevant for
Miranda purposes. \11\
---------------------------------------------------------------------------
\11\ Stansbury v. California, 114 S. Ct. 1526
(1994).
---------------------------------------------------------------------------
[P. 1338, add to text following n.344:]
After a suspect has knowingly and voluntarily waived
his Miranda rights, police officers may continue questioning
until and unless the suspect clearly requests an attorney.
\12\
---------------------------------------------------------------------------
\12\ Davis v. United States, 114 S. Ct. 2350 (1994)
(suspect's statement that ``maybe I should talk to a
lawyer,'' uttered after Miranda waiver and after an hour and
a half of questioning, did not constitute such a clear
request for an attorney when, in response to a direct
follow-up question, he said ``no, I don't want a lawyer'').
---------------------------------------------------------------------------
The Operation of the Exclusionary Rule
--Supreme Court Review
[P. 1341, add to text at end of section:]
In Withrow v. Williams, \13\ the Court held that the
rule of Stone v. Powell, \14\ precluding federal habeas
corpus review of a state prisoner's claim that his
conviction rests on evidence obtained through an
unconstitutional search or seizure, does not extend to
preclude federal habeas review of a state prisoner's claim
that his conviction rests on statements obtained in
violation of the safeguards mandated by Miranda.
---------------------------------------------------------------------------
\13\ 507 U.S. 680 (1993).
\14\ 428 U.S. 465 (1976). See main text, pp. 1265-
66.
---------------------------------------------------------------------------
DUE PROCESS
Substantive Due Process
--Discrimination
[P. 1357, add to n.71:]
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097,
2106-08 (1995).
[P. 1358, add to n.75 following Richardson v. Belcher
citation:]
FCC v. Beach Communications, 508 U.S. 307 (1993)
(exemption from cable TV regulation of facilities that serve
only dwelling units under common ownership).
[[Page 55]]
--Retroactive Taxes
[P. 1364, substitute for last paragraph in section:]
Although the Court during the 1920s struck down gift
taxes imposed retroactively upon gifts that were made and
completely vested before the enactment of the taxing
statute, \15\ those decisions have recently been
distinguished, and their precedential value limited. \16\ In
United States v. Carlton, the Court declared that ``[t]he
due process standard to be applied to tax statutes with
retroactive effect . . . is the same as that generally
applicable to retroactive economic legislation''--
retroactive application of legislation must be shown to be
```justified by a rational legislative purpose.' '' \17\
Applying that principle, the Court upheld retroactive
application of a 1987 amendment limiting application of a
federal estate tax deduction originally enacted in 1986.
Congress' purpose was ``neither illegitimate nor
arbitrary,'' the Court noted, since Congress had acted ``to
correct what it reasonably viewed as a mistake in the
original 1986 provision that would have created a
significant and unanticipated revenue loss.'' Also,
``Congress acted promptly and established only a modest
period of retroactivity.'' The fact that the taxpayer had
transferred stock in reliance on the original enactment was
not dispositive, since ``[t]ax legislation is not a promise,
and a taxpayer has no vested right in the Internal Revenue
Code.'' \18\
---------------------------------------------------------------------------
\15\ Untermyer v. Anderson, 276 U.S. 440 (1928);
Blodgett v. Holden, 275 U.S. 142 (1927), modified, 276 U.S.
594 (1928); Nichols v. Coolidge, 274 U.S. 531 (1927). See
also Heiner v. Donnan, 285 U.S. 312 (1932) (invalidating as
arbitrary and capricious a conclusive presumption that gifts
made within two years of death were made in contemplation of
death).
\16\ Untermyer was distinguished in United States v.
Hemme, 476 U.S. 558, 568 (1986), upholding retroactive
application of unified estate and gift taxation to a
taxpayer as to whom the overall impact was minimal and not
oppressive. All three cases were distinguished in United
States v. Carlton, 114 S. Ct. 2018, 2024 (1994), as having
been ``decided during an era characterized by exacting
review of economic legislation under an approach that `has
long since been discarded.''' The Court noted further that
Untermyer and Blodgett had been limited to situations
involving creation of a wholly new tax, and that Nichols had
involved a retroactivity period of 12 years. Id.
\17\ 114 S. Ct. 2018, 2022 (1994) (quoting Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976)). These
principles apply to estate and gift taxes as well as to
income taxes, the Court added. 114 S. Ct. at 2024.
\18\ 114 S. Ct. at 2023.
---------------------------------------------------------------------------
--Deprivation of Property: Retroactive Legislation
[P. 1365, add to n.130:]
Concrete Pipe & Products v. Construction Laborers
Pension Trust, 508 U.S. 602, 636-41 (1993) (imposition of
multiemployer pension plan withdrawal liability on an
employer is not irrational, even though none of its
employees had earned vested benefits by the time of
withdrawal).
[[Page 56]]
NATIONAL EMINENT DOMAIN POWER
When Property Is Taken
--Regulatory Takings
[P. 1387, add to n.277 after initial citation:]
Accord, Concrete Pipe & Products v. Construction
Laborers Pension Trust, 508 U.S. 602, 645-46 (1993).
[P. 1391, delete remainder of paragraph after n.299 and
substitute the following:]
``If [the government] wants an easement across the
Nollans' property, it must pay for it.'' \19\ Because the
Nollan Court found no essential nexus between the permit
condition and the asserted government interest, it did not
address whether there is any additional requirement when
such a nexus does exist, as is often the case with land
dedications and other permit conditions. \20\ Seven years
later, however, the Court announced in Dolan v. City of
Tigard \21\ that conditions attached to development permits
must be related to the impact of the proposed development
not only in nature but also in degree. Government must
establish a ``rough proportionality'' between permit
conditions and the developmental impacts at which they are
aimed. \22\ The Court ruled in Dolan that
[[Page 57]]
the city's conditioning of a building permit for expansion
of a hardware store on the store owner's dedication of a
portion of her land for a floodplain/recreational easement
and for an adjacent pedestrian/bicycle pathway amounted to a
taking. In general, the requisite nexus existed between the
city's interest in flood control and imposition of an
easement restricting development in the floodplain, and
between the city's interest in minimizing traffic congestion
and the required bike path dedication. The floodplain
easement, however, went beyond a mere building restriction;
it also contained a recreational component that deprived the
property owner of the right to exclude others from her land.
Because the city had not said ``why a public greenway, as
opposed to a private one, was required in the interest of
flood control,'' \23\ the Court concluded that the city had
failed to establish ``the required reasonable relationship''
for this component of the easement. \24\ Similarly, the city
had not adequately demonstrated a reasonable relationship
between the bikepath dedication requirement and the
additional vehicle and bicycle trips that would be generated
by the applicant's development. \25\
---------------------------------------------------------------------------
\19\ 483 U.S. at 842.
\20\ Justice Scalia, author of the Court's opinion
in Nollan, amplified his views in a concurring and
dissenting opinion in Pennell v. City of San Jose, 485 U.S.
1 (1988), explaining that ``common zoning regulations
requiring subdividers to observe lot-size and set-back
restrictions, and to dedicate certain areas to public
streets, are in accord with [constitutional requirements]
because the proposed property use would otherwise be the
cause of'' the social evil (e.g., congestion) that the
regulation seeks to remedy. By contrast, the Justice
asserted, a rent control restriction pegged to individual
tenant hardship lacks such cause-and-effect relationship and
is in reality an attempt to impose on a few individuals
public burdens that ``should be borne by the public as a
whole.'' 485 U.S. at 20, 22.
\21\ 114 S. Ct. 2309 (1994). This was a 5-4
decision. Chief Justice Rehnquist's opinion of the Court was
joined by Justices O'Connor, Scalia, Kennedy, and Thomas.
Justices Blackmun and Ginsburg joined Justice Stevens'
dissenting opinion, and Justice Souter added a dissenting
opinion.
\22\ Id. at 2319-20. Justice Stevens' dissent
criticized the Court's ``abandon[ment of] the traditional
presumption of constitutionality and imposi[tion of] a novel
burden of proof on [the] city.'' Id. at 2326. The Court
responded by distinguishing between challenges to generally
applicable zoning regulations, where the burden
appropriately rests on the challenging party, and imposition
of property exactions through adjudicative proceedings,
where ``the burden properly rests on the city.'' Id. at 2320
n.8. As for the standard of proof, the Court looked to state
law and rejected the two extremes--a generalized statement
of connection deemed ``too lax'' to protect the Fifth
Amendment right to just compensation, and a ``specific and
uniquely attributable'' test deemed too exacting. Instead,
the Court chose an ``intermediate position'' requiring a
showing of ``reasonable relationship,'' but recharacterized
it as ``rough proportionality'' in order to avoid confusion
with ``rational basis.'' Id. at 2319. Note, however, that
the Court stated its holdings in terms of lack of
``reasonable relationship,'' rather than lack of ``rough
proportionality.''
\23\ Id. at 2320.
\24\ Id. at 2321. This conclusion, Justice Souter
pointed out in dissent, sounds very much like ``an
application of Nollan's nexus analysis.'' Id. at 2330.
\25\ The city had quantified the traffic increases
that could be expected from the development, but had merely
speculated that construction of the bike path ``could
offset'' some of that increase. While ``[n]o precise
mathematical calculation is required,'' the Court concluded,
``the city must make some effort to quantify its findings in
support of the dedication.'' Id. at 2322.
[[Page 59]]
SIXTH AMENDMENT
RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
RIGHT TO TRIAL BY IMPARTIAL JURY
Jury Trial
[P. 1408, change heading to:]
--The Attributes and Function of the Jury
[P. 1410, add to text following n.64:]
Certain functions of the jury are likely to remain
consistent between the federal and state court systems. For
instance, the requirement that a jury find a defendant
guilty beyond a reasonable doubt, which had already been
established under the Due Process Clause, \1\ has been held
to be a standard mandated by the Sixth Amendment. \2\ The
Court has further held that the Fifth Amendment Due Process
Clause and the Sixth Amendment require that a jury find a
defendant guilty of every element of the crime with which he
is charged, including questions of mixed law and fact. \3\
Thus, a district court presiding over a case of providing
false statements to a federal agency in violation of 18
U.S.C. Sec. 1001 erred when it took the issue of the
``materiality'' of the false statement away from the jury.
\4\
---------------------------------------------------------------------------
\1\ See In re Winship, 397 U.S. 358, 364 (1970).
\2\ Sullivan v. Louisiana, 508 U.S. 275 (1993).
\3\ United States v. Gaudin, 115 S. Ct. 2310 (1995).
\4\ Gaudin, 115 S. Ct. at 2320.
---------------------------------------------------------------------------
--Criminal Proceedings to Which the Guarantee Applies
[P. 1411, add to text following n.68:]
A defendant who is prosecuted in a single proceeding
for multiple petty offenses, however, does not have a
constitutional right to a jury trial, even if the aggregate
of sentences authorized for the offense exceeds six months.
\5\
---------------------------------------------------------------------------
\5\ Lewis v. United States, 116 S. Ct. 2163 (1996).
---------------------------------------------------------------------------
[P. 1411, add to n.73:]
The distinction between criminal and civil contempt may
be somewhat more elusive. International Union, UMW v.
Bagwell, 512 U.S. 821 (1994) (fines levied on the union were
criminal in nature where the conduct did not occur in the
court's presence, the court's injunction required compliance
with an entire code of conduct, and the fines assessed were
not compensatory).
[[Page 60]]
ASSISTANCE OF COUNSEL
Development of an Absolute Right to Counsel
--Gideon v. Wainwright
[P. 1435, n.217, delete citation and parenthetical to
Baldasar v. Illinois appearing after last semi-colon,
and insert the following:]
But see Nichols v. United States, 511 U.S. 738 (1994)
(as Scott v. Illinois, 440 U.S. 367 (1979) provides that an
uncounseled misdemeanor conviction is valid if defendant is
not incarcerated, such a conviction may be used as the basis
for penalty enhancement upon a subsequent conviction).
--Effective Assistance of Counsel
[P. 1439, add to n.244:]
In Hill v. Lockhart, 474 U.S. 52 (1985), the Court
applied the Strickland test to attorney decisions in plea
bargaining, holding that a defendant must show a reasonable
probability that, but for counsel's errors, he would not
have pleaded guilty.
[P. 1439, delete last sentence at end of first full
paragraph on page and add the following:]
In Lockhart v. Fretwell, \6\ the Court refined the
Strickland test to require that not only would a different
trial result be probable because of attorney performance,
but that the trial result which did occur was fundamentally
unfair or unreliable. \7\
---------------------------------------------------------------------------
\6\ 506 U.S. 364 (1993).
\7\ 506 U.S. at 368-70 (1993) (failure of counsel to
raise a constitutional claim that was valid at time of trial
did not constitute ``prejudice'' because basis of claim had
since been overruled).
[[Page 61]]
SEVENTH AMENDMENT
CIVIL TRIALS
TRIAL BY JURY IN CIVIL CASES
Application of the Amendment
--Cases ``at Common Law''
[P. 1455, add to text following n.30:]
Where there is no direct historical antecedent
dating to the adoption of the amendment, the court may also
consider whether existing precedent and the sound
administration of justice favor resolution by judges or
juries. \1\
---------------------------------------------------------------------------
\1\ Markman v. Westview Instruments, Inc., 116 S.
Ct. 1384 (1996) (interpretation and construction of terms
underlying patent claims may be reserved entirely for the
court).
---------------------------------------------------------------------------
--Procedures Limiting Jury's Role
[P. 1461, add to n.59:]
A federal appellate court may also review a district
court's denial of a motion to set aside an award as
excessive under an abuse of discretion standard. Gasperini
v. Center for Humanities, Inc., 116 S. Ct. 2211 (1996) (New
York State law which requires a review of jury awards to
determine if they ``deviate materially from reasonable
compensation'' may be adopted by federal district, but not
appellate, court exercising diversity jurisdiction).
[[Page 63]]
AMENDMENT 8--PUNISHMENT FOR CRIME
EIGHTH AMENDMENT
EXCESSIVE FINES
[P. 1471, add to text following n.35:]
The Court has held, however, that the excessive
fines clause can be applied in civil forfeiture cases. \1\
---------------------------------------------------------------------------
\1\ In Austin v. United States, 509 U.S. 602 (1993),
the Court noted that the application of the excessive fines
clause to civil forfeiture did not depend on whether it was
a civil or criminal procedure, but rather on whether the
forfeiture could be seen as punishment. The Court was
apparently willing to consider any number of factors in
making this evaluation; civil forfeiture was found to be at
least partially intended as punishment, and thus limited by
the clause, based on its common law roots, its focus on
culpability, and various indications in the legislative
histories of its more recent incarnations.
---------------------------------------------------------------------------
CRUEL AND UNUSUAL PUNISHMENT
--Capital Punishment
[P. 1478, add to n.69:]
Consequently, a judge may be given significant
discretion to override a jury sentencing recommendation, as
long as the court's decision is adequately channeled to
prevent arbitrary results. Harris v. Alabama, 115 S. Ct.
1031 (1995) (Eighth Amendment not violated where judge is
only required to ``consider'' a capital jury's sentencing
recommendation).
[P. 1480, add to n.76:]
But see Tuilaepa v. California, 114 S. Ct. 2630 (1994)
(holding that permitting capital juries to consider the
circumstances of the crime, the defendant's prior criminal
activity, and the age of the defendant, without further
guidance, is not unconstitutionally vague).
[P. 1480, add to n.77:]
Arave v. Creech, 507 U.S. 463 (1993) (consistent
application of narrowing construction of phrase ``exhibited
utter disregard for human life'' to require that the
defendant be a ``cold-blooded, pitiless slayer'' cures
vagueness).
[P. 1481, add to n.82:]
Romano v. Oklahoma, 114 S. Ct. 2004 (1994) (imposition
of death penalty after introduction of evidence that
defendant had been sentenced to death previously did not
diminish the jury's sense of responsibility so as to violate
the Eighth Amendment).
[[Page 64]]
[P. 1483, add new note following period after word
``considered'' in second sentence of paragraph beginning
after n.93:]
See, e.g., Johnson v. Texas, 509 U.S. 350 (1993)
(consideration of youth as a mitigating factor may be
limited to jury estimation of probability that defendant
would commit future acts of violence).
[P. 1483, add new note at end of third sentence of paragraph
beginning after n.93:]
Richmond v. Lewis, 506 U.S. 40 (1992) (no cure of trial
court's use of invalid aggravating factor where appellate
court fails to reweigh mitigating and aggravating factors).
[P. 1484, add to n.103:]
Thus, where psychiatric testimony was introduced
regarding an invalid statutory aggravating circumstance, and
where the defendant was not provided the assistance of an
independent psychiatrist in order to develop rebuttal
testimony, the lack of rebuttal testimony might have
affected how the jury evaluated another aggravating factor.
Consequently, the reviewing court erred in reinstating a
death sentence based on this other valid aggravating factor.
Tuggle v. Netherland, 116 S. Ct. 283 (1995).
[P. 1487, add to text following n.116:]
In addition, the Court has held that, absent an
independent constitutional violation, habeas corpus relief
for prisoners who assert innocence based on newly discovered
evidence should generally be denied. \2\
---------------------------------------------------------------------------
\2\ Herrera v. Collins, 506 U.S. 390 (1993) (holding
that a petitioner would have to meet an ``extraordinarily
high'' threshold of proof of innocence to warrant federal
habeas relief).
---------------------------------------------------------------------------
[P. 1498, add to n.171:]
Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who
alleged exposure to secondhand ``environmental'' tobacco
smoke stated a cause of action under the Eighth Amendment).
[P. 1498, add to n.174:]
Deliberate indifference in this context means something
more than disregarding an unjustifiably high risk of harm
that should have been known, as might apply in the civil
context. Rather, it requires a finding that the responsible
person acted in reckless disregard of a risk of which he or
she was aware, as would generally be required for a criminal
charge of recklessness. Farmer v. Brennan, 511 U.S. 825
(1994).
[[Page 65]]
TENTH AMENDMENT
RESERVED POWERS
Effect of Provisions on Federal Powers
--Federal Police Powers
[P. 1514, add to text following first sentence in paragraph
starting after n.42:]
More recently, the Court struck down a statute
prohibiting possession of a gun at or near a school,
rejecting an argument that possession of firearms in school
zones can be punished under the Commerce Clause because it
impairs the functioning of the national economy. Acceptance
of this rationale, the Court said, would eliminate ``a[ny]
distinction between what is truly national and what is truly
local,'' would convert Congress' commerce power into ``a
general police power of the sort retained by the States,''
and would undermine the ``first principle'' that the Federal
Government is one of enumerated and limited powers. \1\
---------------------------------------------------------------------------
\1\ United States v. Lopez, 115 S. Ct. 1624, 1633-34
(1995).
[[Page 67]]
ELEVENTH AMENDMENT
State Immunity
Suits Against States
--The Nature of the States' Immunity
[P. 1527, add to n.33:]
Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114,
1127-28 (1996).
[P. 1528, add to n.43 after first sentence and accompanying
citation:]
Of course, when a state is sued in federal court
pursuant to federal law, the Federal Government, not the
defendant state, is ``the authority that makes the law''
creating the right of action. See Seminole Tribe of Florida
v. Florida, 116 S. Ct. 1114, 1170-71 (1996) (Justice Souter
dissenting).
[P. 1530, delete n.51 and accompanying text]
[P. 1530, delete second full paragraph on page]
[P. 1531, add to text at end of section:]
The Hans interpretation has been solidified with the
Court's ruling in Seminole Tribe of Florida v. Florida, \1\
that Congress lacks the power under Article I to abrogate
state immunity under the Eleventh Amendment. That too,
however, was a 5-4 decision, with the four dissenting
Justices believing that Hans was wrongly decided. \2\
---------------------------------------------------------------------------
\1\ 116 S. Ct. 1114 (1996).
\2\ Chief Justice Rehnquist wrote the opinion of the
Court, joined by Justices O'Connor, Scalia, Kennedy, and
Thomas. Justice Stevens dissented, as did Justice Souter,
whose opinion was joined by Justices Ginsburg and Breyer.
---------------------------------------------------------------------------
--Congressional Withdrawal of Immunity
[P. 1535, delete last sentence of first paragraph and
substitute the following new paragraph:]
Pennsylvania v. Union Gas lasted less than seven
years, the Court overruling it in Seminole Tribe of Florida
v. Florida. \3\ Chief Justice Rehnquist, writing for a 5-4
majority, concluded that there is ``no principled
distinction in favor of the States to be drawn between the
Indian Commerce Clause [at issue in Seminole Tribe] and the
Interstate Commerce Clause [relied upon in Union Gas].'' \4\
[[Page 68]]
In the majority's view, Union Gas had deviated from a line
of cases tracing back to Hans v. Louisiana \5\ that viewed
the Eleventh Amendment as implementing the ``fundamental
principle of sovereign immunity [that] limits the grant of
judicial authority in Article III.'' \6\ Because ``the
Eleventh Amendment restricts the judicial power under
Article III, . . . Article I cannot be used to circumvent
the constitutional limitations placed upon federal
jurisdiction.'' \7\ Section 5 of the Fourteenth Amendment,
of course, is another matter. Fitzpatrick v. Bitzer, \8\
``based upon a rationale wholly inapplicable to the
Interstate Commerce Clause, viz., that the Fourteenth
Amendment, adopted well after the adoption of the Eleventh
Amendment and the ratification of the Constitution, operated
to alter the pre-existing balance between state and federal
power achieved by Article III and the Eleventh Amendment,''
remains good law. \9\
---------------------------------------------------------------------------
\3\ 116 S. Ct. 1114 (1996) (invalidating a provision
of the Indian Gaming Regulatory Act authorizing an Indian
tribe to sue a State in federal court to compel performance
of a duty to negotiate in good faith toward the formation of
a compact).
\4\ 116 S. Ct. at 1127.
\5\ 134 U.S. 1 (1890).
\6\ 116 S. Ct. at 1127-28 (quoting Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984).
\7\ Id. at 1131-32. Justice Souter's dissent
undertook a lengthy refutation of the majority's analysis,
asserting that the Eleventh Amendment is best understood, in
keeping with its express language, as barring only suits
based on diversity of citizenship, and as having no
application to federal question litigation. Moreover,
Justice Souter contended, the state soverign immunity that
the Court mistakenly recognized in Hans v. Louisiana was a
common law concept that ``had no constitutional status and
was subject to congressional abrogation.'' 116 S. Ct. at
1153. The Constitution made no provision for wholesale
adoption of the common law, but, on the contrary, was
premised on the view that common law rules would always be
subject to legislative alteration. This ``imperative of
legislative control grew directly out of the Framers'
revolutionary idea of popular sovereignty.'' Id. at 1173.
\8\ 427 U.S. 445 (1976).
\9\ 116 S. Ct. at 1128.
[[Page 69]]
FOURTEENTH AMENDMENT
DUE PROCESS
RIGHTS GUARANTEED
DUE PROCESS OF LAW
Health, Safety and Morals
--Protecting Morality
[P. 1636, add to text following n.163:]
Similarly, a court may order a car used in an act of
prostitution forfeited as a public nuisance, even if this
works a deprivation on an innocent joint owner of the car.
\1\
---------------------------------------------------------------------------
\1\ Bennis v. Michigan, 116 S. Ct. 994 (1996).
---------------------------------------------------------------------------
Procedure in Taxation
--Sufficiency of Remedy
[P. 1665, add to n.177:]
See also Reich v. Collins, 115 S. Ct. 547 (1994)
(violation of due process to hold out a post-deprivation
remedy for unconstitutional taxation and then, after the
disputed taxes had been paid, to declare that no such remedy
exists).
PROCEDURAL DUE PROCESS: CIVIL
Power of the State to Regulate Procedure
--Costs, Damages, and Penalties
[P. 1698, add to n.34:]
See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994)
(striking down a provision of the Oregon Constitution
limiting judicial review of the amount of punitive damages
awarded by a jury).
[P. 1698, add to text after n.34:]
The Court has indicated, however, that the amount of
punitive damages is limited to those reasonably necessary to
vindicate a state's interest in deterring unlawful conduct.
\2\ These limits may
[[Page 70]]
be discerned by a court by examining the degree of
reprehensibility of the act, the ratio between the punitive
award and plaintiff's actual or potential harm, and the
legislative sanctions provided for comparable misconduct.
\3\
---------------------------------------------------------------------------
\2\ BMW v. Gore, 116 S. Ct. 1589 (1996) (holding
that a $2 million judgement for failing to disclose to a
purchaser that a ``new'' car had been repainted was
``grossly excessive'' in relation to the state's interest,
as only a few of the 983 similarly repainted cars had been
sold in that same state). But see TXO Prod. Corp. v.
Alliance Resources, 509 U.S. 443 (1993) (punitive damages of
$10 million for slander of title does not violate the Due
Process Clause of the Fourteenth Amendment even though the
jury awarded actual damages of only $19,000).
\3\ BMW v. Gore, 116 S. Ct. at 1589 (1996).
---------------------------------------------------------------------------
Jurisdiction
[P. 1716, change heading:]
--Actions In Rem: Proceeding Against Property
[P. 1717, add to n.144:]
Predeprivation notice and hearing may be required if the
property is not the sort that, given advance warning, could
be removed to another jurisdiction, destroyed, or concealed.
United States v. James Daniel Good Real Property, 510 U.S.
43 (1993) (notice to owner required before seizure of house
by government).
The Procedure Which is Due Process
--The Interests Protected: Entitlement and Positivist
Recognition
[P. 1731, add to text following n.215:]
In an even more recent case, the Court limited the
application of this test to those circumstances where the
restraint on freedom imposed by the State creates an
``atypical and significant'' deprivation. \4\
---------------------------------------------------------------------------
\4\ Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995)
(solitary confinement not atypical ``in relation to the
ordinary incidents of prison life'').
---------------------------------------------------------------------------
--The Requirements of Due Process
[P. 1741, add to n.269:]
See also Richards v. Jefferson County, 116 S. Ct. 1761
(1996) (res judicata may not apply where taxpayer who
challenged a county's occupation tax was not informed of
prior case and where taxpayer interests were not adequately
protected).
PROCEDURAL DUE PROCESS: CRIMINAL
The Elements of Due Process
--Initiation of Prosecution
[P. 1753, add to n.43:]
The Court has also rejected an argument that due process
requires that criminal prosecutions go forward only on a
showing of probable cause. Albright v. Oliver, 114 S. Ct.
807 (1994) (holding that there is no civil rights action
based on the Fourteenth Amendment for arrest and imposition
of bond without probable cause).
[[Page 71]]
--Fair Trial
[P. 1756, add to n.59:]
But see Montana v. Egelhoff, 116 S. Ct. 2013 (1996)
(state may bar defendant from introducing evidence of
intoxication to prove lack of mens rea).
--Prosecutorial Misconduct
[P. 1760, add to n.76:]
See also Wood v. Bartholomew, 116 S. Ct. 7 (1995) (per
curiam) (holding no Due Process violation where prosecutor's
failure to disclose the result of a witness' polygraph test
would not have affected the outcome of the case).
--Proof, Burden of Proof, and Presumptions
[P. 1761, add to n.83:]
See also Sullivan v. Louisiana, 508 U.S. 275 (1993)
(Sixth Amendment guarantee of trial by jury requires a jury
verdict of guilty beyond a reasonable doubt).
[P. 1762, add to n.87:]
But see Victor v. Nebraska, 511 U.S. 1 (1994)
(considered as a whole, jury instructions that define
``reasonable doubt'' as requiring a ``moral certainty'' or
as equivalent to ``substantial doubt'' did not violate due
process because other clarifying language was included.)
[P. 1764, add to n.96:]
The Court has held, however, that for purposes of a
recidivism-based sentence enhancement where a prosecutor
carries the burden of establishing a prior conviction, a
defendant can be required to bear the burden of production
in challenging the validity of such conviction. See Parke v.
Raley, 506 U.S. 20 (1992) (a sentencing court considering a
guilty plea in prior case may rely upon a presumption of
regularity during that proceeding).
[P. 1765, add to n.104 after Spencer v. Texas cite:]
Parke v. Raley, 506 U.S. 20 (1992).
--The Problem of the Incompetent of Insane Defendant of
Convict
[P. 1769, add to n.120:]
It is a violation of due process, however, for a state
to require that a defendant must prove competence to stand
trial by clear and convincing evidence. Cooper v. Oklahoma,
116 S. Ct. 1373 (1996).
--Corrective Process: Appeals and Other Remedies
[P. 1773, add to n.150:]
Establishing a right of access to law materials,
however, requires an individualized demonstration of an
inmate having been hindered in efforts to pursue a legal
claim. See Lewis v. Casey, 116 S. Ct. 2174 (1996) (no
requirement that the State ``enable [a] prisoner to discover
grievances, and to litigate effectively'').
[[Page 72]]
TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND
RELATED EXERCISES OF THE POLICE POWERS
Police Power Regulation
--Classification
[P. 1831, add to n.260 after paragraph headed
``Attorneys'':]
Cable Television: exemption from regulation under the
Cable Communications Policy Act of facilities that serve
only dwelling units under common ownership. FCC v. Beach
Communications, 508 U.S. 307 (1993). Regulatory efficiency
is served by exempting those systems for which the costs of
regulation exceed the benefits to consumers, and potential
for monopoly power is lessened when a cable system operator
is negotiating with a single-owner.
EQUAL PROTECTION AND RACE
Permissible Remedial Utilization of Racial Classifications
[P. 1868, delete last sentence and add to text at end of
section:]
The distinction between federal and state power to
apply racial classifications proved ephemeral. The Court
ruled in Adarand Constructors, Inc. v. Pena \5\ that racial
classifications imposed by federal law must be analyzed by
the same strict scrutiny standard that is applied to
evaluate state and local classifications based on race. The
Court overruled Metro Broadcasting and, to the extent that
it applied a review standard less stringent than strict
scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be
applied regardless of the race of those burdened or
benefited by the particular classification; there is no
intermediate standard applicable to ``benign'' racial
classifications. The underlying principle, the Court
explained, is that the Fifth and Fourteenth Amendments
protect persons, not groups. It follows, therefore, that
classifications based on the group characteristic of race
``should be subjected to detailed judicial inquiry to ensure
that the personal right to equal protection . . . has not
been infringed.'' \6\
---------------------------------------------------------------------------
\5\ 115 S. Ct. 2097 (1995). This was a 5-4 decision.
Justice O'Connor's opinion of Court was joined by Chief
Justice Rehnquist, and by Justices Kennedy, Thomas, and--to
the extent not inconsistent with his own concurring
opinion--Scalia. Justices Stevens, Souter, Ginsburg and
Breyer dissented.
\6\ 115 S. Ct. at 2113 (emphasis original).
---------------------------------------------------------------------------
[[Page 73]]
THE NEW EQUAL PROTECTION
Classifications Meriting Close Scrutiny
--Sex
[P. 1879, add to text after n.51:]
Even when the negative ``stereotype'' which is
evoked is that of a stereotypical male, the Court has
evaluated this as potential gender discrimination. In J. E.
B. v. Alabama ex rel. T. B., \7\ the Court addressed a
paternity suit where men had been intentionally excluded
from a jury through peremptory strikes. The Court rejected
as unfounded the argument that men, as a class, would be
more sympathetic to the defendant, the putative father. The
Court also determined that genderbased exclusion of jurors
would undermine the litigants' interest by tainting the
proceedings, and in addition would harm the wrongfully
excluded juror.
---------------------------------------------------------------------------
\7\ 511 U.S. 127 (1994).
---------------------------------------------------------------------------
[P. 1885, add to text after n.76:]
In a 1996 case, the Court required that a state
demonstrate ``exceedingly persuasive justification'' for
gender discrimination. When a female applicant challenged
the exclusion of women from the historically male-only
Virginia Military Institute (VMI), the State of Virginia
defended the exclusion of females as essential to the nature
of training at the military style institution. \8\ The State
argued that the VMI program, which included rigorous
physical training, deprivation of personal privacy, and an
``adversative model'' that featured minute regulation of
behavior, would need to be unacceptably modified to
facilitate the admission of women. While recognizing that
women's admission would require accommodation such as
different housing assignments and physical training
programs, the Court found that the reasons set forth by the
State were not ``exceedingly persuasive,'' and thus the
State did not meet its burden of justification. The Court
also rejected the argument that a parallel program
established by the State at a private women's college served
as an adequate substitute, finding that the program lacked
the military-style structure found at VMI, and that it did
not equal VMI in faculty, facilities, prestige or alumni
network.
---------------------------------------------------------------------------
\8\ United States v. Virginia, 116 S. Ct. 2264
(1996).
---------------------------------------------------------------------------
[[Page 74]]
Fundamental Interests: The Political Process
--Apportionment and Districting
[P. 1905, add to n.157 after cite for Summers v. Cenarrusa:]
But see Voinovich v. Quilter, 507 U.S. 146 (1993)
(vacating and remanding for further consideration the
rejection of a deviation in excess of 10% intended to
preserve political subdivision boundaries).
[P. 1906, add to text following n.161:]
Even if racial gerrymandering is intended to benefit
minority voting populations, it is subject to strict
scrutiny under the Equal Protection Clause if racial
considerations are the dominant and controlling rationale in
drawing district lines. \9\ Showing that a district's
``bizarre'' shape departs from traditional districting
principles such as compactness, contiguity, and respect for
political subdivision lines may serve to reinforce such a
claim, \10\ although a plurality of the Justices would not
preclude the creation of ``reasonably compact'' majority-
minority districts in order to remedy past discrimination or
to comply with the requirements of the Voting Rights Act of
1965. \11\
---------------------------------------------------------------------------
\9\ Miller v. Johnson, 115 S. Ct. 2475 (1995)
(drawing congressional district lines in order to comply
with Sec. 5 of the Voting Rights Act as interpreted by the
Department of Justice not a compelling governmental
interest).
\10\ Id.; Shaw v. Reno, 509 U.S. 630 (1993). See
also Shaw v. Hunt, 116 S.Ct. 1894 (1996) (creating an
unconventionally-shaped majority-minority congressional
district in one portion of state in order to alleviate
effect of fragmenting geographically compact minority
population in another portion of state does not remedy a
violation of Sec. 2 of Voting Rights Act, and is thus not a
compelling governmental interest).
\11\ Bush v. Vera, 116 S. Ct. 1941, 1961 (1996)
(opinion of Justice O'Connor, joined by Chief Justice
Rehnquist and Justice Kennedy) (also involving congressional
districts).
---------------------------------------------------------------------------
[P. 1916, add new heading and text following n.24:]
Sexual Orientation
In Romer v. Evans, \12\ the Supreme Court struck
down a state constitutional amendment which both overturned
local ordinances prohibiting discrimination against
homosexuals, lesbians or bisexuals, and prohibited any state
or local governmental action to either remedy discrimination
or to grant preferences based on sexual orientation. The
Court declined to follow the lead of the Supreme Court of
Colorado, which had held that the amendment infringed on
gays' and lesbians' fundamental right to participate in the
political process. \13\ The Court also rejected the
application of
[[Page 75]]
the heightened standard reserved for suspect classes, and
sought only to establish whether the legislative
classification had a rational relation to a legitimate end.
---------------------------------------------------------------------------
\12\ 116 S. Ct. 1620 (1996).
\13\ Evans v. Romer, 854 P.2d 1270 (Colo. 1993).
---------------------------------------------------------------------------
The Court found that the amendment failed even this
restrained review. Animus against a class of persons was not
considered by the Court as a legitimate goal of government:
``[I]f the constitutional conception of `equal protection of
the laws' means anything, it must at the very least mean
that a bare . . . desire to harm a politically unpopular
group cannot constitute a legitimate governmental
interest.'' \14\ The Court then rejected arguments that the
amendment protected the freedom of association rights of
landlords and employers, or that it would conserve resources
in fighting discrimination against other groups. The Court
found that the scope of the law was unnecessarily broad to
achieve these stated purposes, and that no other legitimate
rationale existed for such a restriction.
---------------------------------------------------------------------------
\14\ 116 S.Ct. at 1628, quoting Department of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
[[Page 77]]
TWENTY-FIRST AMENDMENT
Effect of Section 2 Upon Other Constitutional Provisions
[P. 1982, delete sentence containing n.31 and substitute the
following:]
The Court departed from this line of reasoning in
California v. LaRue. \1\
---------------------------------------------------------------------------
\1\ 409 U.S. 109 (1972).
---------------------------------------------------------------------------
[P. 1983, add to text at end of section:]
In 44 Liquormart, Inc. v. Rhode Island, \2\ the
Court disavowed LaRue and Bellanca, and reaffirmed that,
``although the Twenty-first Amendment limits the effect of
the dormant Commerce Clause on a state's regulatory power
over the delivery or use of intoxicating beverages within
its borders, `the Amendment does not license the States to
ignore their obligations under other provisions of the
Constitution,' '' \3\ and therefore does not afford a basis
for state legislation infringing freedom of expression
protected by the First Amendment. There is no reason, the
Court asserted, for distinguishing between freedom of
expression and the other constitutional guarantees (e.g.,
those protected by the Establishment and Equal Protection
Clauses) held to be insulated from state impairment pursuant
to powers conferred by the Twenty-first Amendment. The Court
hastened to add by way of dictum that states retain adequate
police powers to regulate ``grossly sexual exhibitions in
premises licensed to serve alcoholic beverages.'' `Entirely
apart from the Twenty-first Amendment, the State has ample
power to prohibit the sale of alcoholic beverages in
inappropriate locations.'' \4\
---------------------------------------------------------------------------
\2\ 116 S. Ct. 1495 (1996) (statutory prohibition
against advertisements that provide the public with accurate
information about retail prices of alcoholic beverages is
not shielded from constitutional scrutiny by the Twenty-
first Amendment).
\3\ Id. at 1514 (quoting Capital Cities Cable, Inc.,
v. Crisp, 467 U.S. 691, 712 (1984)).
\4\ Id.
[[Page 79]]
ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE
SUPREME COURT OF THE UNITED STATES
128. Act of August 29, 1935, ch. 814 Sec. 5(e), 49 Stat. 982, 27 U.S.C.
Sec. 205(e).
The prohibition in section 5(e)(2) of the Federal
Alcohol Administration Act of 1935 on the display of alcohol
content on beer labels is inconsistent with the protections
afforded to commercial speech by the First Amendment. The
government's interest in curbing strength wars among brewers
is substantial, but, given the ``overall irrationality'' of
the regulatory scheme, the labeling prohibition does not
directly and materially advance that interest.
Rubin v. Coors Brewing Co., 115 S. Ct.
1585 (1995).
Justices concurring: Thomas, O'Connor,
Scalia, Kennedy, Souter, Ginsburg,
Breyer, and Chief Justice Rehnquist.
Justice concurring specially: Stevens.
129. Act of Aug. 16, 1954, ch. 736, 68A Stat. 521, 26 U.S.C.
Sec. 4371(1).
A federal tax on insurance premiums paid to foreign
insurers not subject to the federal income tax violates the
Export Clause, Art. I, Sec. 9, cl. 5, as applied to casualty
insurance for losses incurred during the shipment of goods
from locations within the United States to purchasers
abroad.
United States v. IBM Corp., 116 S. Ct.
1793 (1996).
Justices concurring: Thomas, Rehnquist,
O'Connor, Scalia, Souter, Breyer,
and Chief Justice Rehnquist.
Justices dissenting: Kennedy, Ginsburg.
130. Act of May 11, 1976 (Pub. L. 94-283, Sec. 112(2)), 90 Stat. 489; 2
U.S.C. Sec. 441a(d)(3).
The Party Expenditure Provision of the Federal
Election Campaign Act, which limits expenditures by a
political party ``in connection with the general election
campaign of a [congressional] candidate,'' violates the
First Amendment when applied to expenditures that a
political party makes independently, without coordination
with the candidate.
Colorado Republican Campaign Comm. v.
FEC, 116 S. Ct. 2309 (1996).
Justices concurring: Breyer, O'Connor
and Souter.
Justices concurring in part and
dissenting in part: Kennedy,
Rehnquist, Scalia, and Thomas.
Justices dissenting: Stevens and
Ginsburg.
131. Act of Oct. 17, 1988 (Pub. L. 100-497, Sec. 11(d)(7)), 102 Stat.
2472, 25 U.S.C. Sec. 2710(d)(7).
A provision of the Indian Gaming Regulatory Act
authorizing an Indian tribe to sue a State in federal court
to compel performance of a duty to negotiate in good faith
toward the formation of a compact
[[Page 80]]
violates the Eleventh Amendment. In exercise of its powers
under Article I, Congress may not abrogate States' Eleventh
Amendment immunity from suit in federal court. Pennsylvania
v. Union Gas Co., 491 U.S. 1 (1989), is overruled.
Seminole Tribe of Florida v. Florida,
116 S. Ct. 1114 (1996).
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Souter,
Ginsburg and Breyer.
132. Act of Nov. 30, 1989 (Pub. L. 101-194, Sec. 601), 103 Stat. 1760, 5
U.S.C. app. Sec. 501.
Section 501(b) of the Ethics in Government Act, as
amended in 1989 to prohibit Members of Congress and federal
employees from accepting honoraria, violates the First
Amendment as applied to Executive Branch employees below
grade GS-16. The ban is limited to expressive activity and
does not include other outside income, and the ``speculative
benefits'' of the ban do not justify its ``crudely crafted
burden'' on expression.
United States v. National Treasury
Employees Union, 115 S. Ct. 1003
(1995).
Justices concurring: Stevens, Kennedy,
Souter, Ginsburg, and Breyer.
Justice concurring in part and
dissenting in part: O'Connor.
Justices dissenting: Chief Justice
Rehnquist, and Scalia and Thomas.
133. Act of Nov. 29, 1990 (Pub. L. 101-647, Sec. 1702), 104 Stat. 4844,
18 U.S.C. Sec. 922q.
The Gun Free School Zones Act of 1990, which makes
it a criminal offense to knowingly possess a firearm within
a school zone, exceeds congressional power under the
Commerce Clause. It is ``a criminal statute that by its
terms has nothing to do with `commerce' or any sort of
economic enterprise.'' Possession of a gun at or near a
school ``is in no sense an economic activity that might,
through repetition elsewhere, substantially affect any sort
of interstate commerce.''
United States v. Lopez, 115 S. Ct. 1624
(1995).
Justices concurring: Chief Justice
Rehnquist, O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Souter,
Breyer, and Ginsburg.
134. Act of Dec. 19, 1991 (Pub. L. 102-242 Sec. 476), 105 Stat. 2387, 15
U.S.C. Sec. 78aa-1.
Section 27A(b) of the Securities Exchange Act of
1934, as added in 1991, requiring reinstatement of any
section 10(b) actions that were dismissed as time barred
subsequent to a 1991 Supreme Court decision, violates the
Constitution's separation of powers to the extent that it
requires federal courts to reopen final judgments in private
civil actions. The provision violates a fundamental
principle of Article III that the federal judicial power
comprehends the power to render dispositive judgments.
Plaut v. Spendthrift Farm, Inc., 115 S.
Ct. 1447 (1995).
[[Page 81]]
Justices concurring: Scalia, O'Connor,
Kennedy, Souter, and Thomas, and
Chief Justice Rehnquist.
Justice concurring specially: Breyer.
Justices dissenting: Stevens and
Ginsburg.
135. Act of Oct. 5, 1992 (Pub. L. 102-385, Sec. Sec. 10(b) and 10(c)),
106 Stat. 1487, 1503; 47 U.S.C. Sec. 532(j) and Sec. 531 note,
respectively.
Section 10(b) of the Cable Television Consumer
Protection and Competition Act of 1992, which requires cable
operators to segregate and block indecent programming on
leased access channels if they do not prohibit it, violates
the First Amendment. Section 10(c) of the Act, which permits
a cable operator to prevent transmission of ``sexually
explicit'' programming on public access channels, also
violates the First Amendment.
Denver Area Educ. Tel. Consortium v.
FCC, 116 S. Ct. 2374 (1996).
Justices concurring: Breyer, Stevens,
O'Connor (Sec. 10(b) only), Kennedy,
Souter, and Ginsburg.
Justices dissenting: Thomas, Rehnquist,
Scalia, O'Connor (Sec. 10(c) only).
STATE ACTS AND ORDINANCES HELD UNCONSTITUTIONAL
[[Page 83]]
STATE ACTS HELD UNCONSTITUTIONAL
1090. Edenfield v. Fane, 507 U.S. 761 (1993).
A rule of the Florida Board of Accountancy banning
``direct, in-person, uninvited solicitation'' of business by
certified public accountants is inconsistent with the free
speech guarantees of the First Amendment.
Justices concurring: Kennedy, White,
Blackmun, Stevens, Scalia, Souter,
Thomas, and Chief Justice Rehnquist.
Justice dissenting: O'Connor.
1091. Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993).
Oklahoma may not impose income taxes or motor
vehicle taxes on members of the Sac and Fox Nation who live
in ``Indian country,'' whether the land is within
reservation boundaries, on allotted lands, or in dependent
communities. Such tax jurisdiction is considered to be
preempted unless Congress has expressly provided to the
contrary.
1092. Department of Treasury v. Fabe, 508 U.S. 491 (1993).
An Ohio statute setting priority of claims against
insolvent insurance companies is preempted by the federal
priority statute, 31 U.S.C. Sec. 3713, which accords first
priority to the United States, to the extent that the Ohio
law protects the claims of creditors who are not
policyholders. Insofar as it protects the claims of
policyholders, the law is saved from preemption by section
2(b) of the McCarran-Ferguson Act.
Justices concurring: Blackmun, White,
Stevens, O'Connor, and Chief Justice
Rehnquist.
Justices dissenting: Kennedy, Scalia,
Souter, Thomas.
1093. Oregon Waste Systems v. Oregon Dep't of Environmental Quality, 114
S. Ct. 1345 (1994).
Oregon's imposition of a surcharge on in-state
disposal of solid waste generated in other states--a tax
three times greater than the fee charged for disposal of
waste that was generated in Oregon--constitutes an invalid
burden on interstate commerce. The tax is facially
discriminatory against interstate commerce, is not a valid
compensatory tax, and is not justified by any other
legitimate state interest.
Justices concurring: Thomas, Stevens,
O'Connor, Scalia, Kennedy, Souter,
Ginsburg.
Justices dissenting: Chief Justice
Rehnquist, and Blackmun.
1094. Associated Industries v. Lohman, 114 S. Ct. 1815 (1994).
Missouri's uniform, statewide use tax constitutes an
invalid discrimination against interstate commerce in those
counties in which the use tax is greater than the sales tax
imposed as a local option, even though the overall statewide
effect of the use tax places a lighter
[[Page 84]]
aggregate tax burden on interstate commerce than on
intrastate commerce.
1095. Montana Dep't of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994).
Montana's tax on the possession of illegal drugs, to
be ``collected only after any state or federal fines or
forfeitures have been satisfied,'' constitutes punishment,
and violates the prohibition, derived from the Double
Jeopardy Clause, against successive punishments for the same
offense.
Justices concurring: Stevens, Blackmun,
Kennedy, Souter, and Ginsburg.
Justices dissenting: Chief Justice
Rehnquist, and O'Connor, Scalia, and
Thomas.
1096. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994).
A Massachusetts milk pricing order, imposing an
assessment on all milk sold by dealers to Massachusetts
retailers, is an unconstitutional discrimination against
interstate commerce because the entire assessment is then
distributed to Massachusetts dairy farmers in spite of the
fact that about two-thirds of the assessed milk is produced
out of state. The discrimination imposed by the pricing
order is not justified by a valid factor unrelated to
economic protectionism.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, and Ginsburg.
Justices concurring specially: Scalia
and Thomas.
Justices dissenting: Chief Justice
Rehnquist and Blackmun.
1097. Honda Motor Co. v. Oberg, 114 S. Ct. 2331 (1994).
A provision of the Oregon Constitution, prohibiting
judicial review of the amount of punitive damages awarded by
a jury unless the court can affirmatively say there is no
evidence to support the verdict, is invalid under the Due
Process Clause of the Fourteenth Amendment. Judicial review
of the amount awarded was one of the few procedural
safeguards available at common law, yet Oregon has removed
that safeguard without providing any substitute procedure,
and with no indication that the danger of arbitrary awards
has subsided.
Justices concurring: Stevens, Blackmun,
O'Connor, Scalia, Kennedy, Souter,
and Thomas.
Justices dissenting: Ginsburg and Chief
Justice Rehnquist.
1098. Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481
(1994).
A New York State law creating a special school
district for an incorporated village composed exclusively of
members of one small religious sect violates the
Establishment Clause.
Justices concurring: Souter, Blackmun,
Stevens, O'Connor, and Ginsburg.
Justice concurring specially: Kennedy.
Justices dissenting: Scalia, Thomas, and
Chief Justice Rehnquist.
[[Page 85]]
1099. American Airlines v. Wolens, 115 S. Ct. 817 (1995).
The Illinois Consumer Fraud Act, to the extent that
it authorizes actions in state court challenging as ``unfair
or deceptive'' marketing practices an airline company's
changes in its frequent flyer program, is preempted by the
Airline Deregulation Act, which prohibits states from
``enact[ing] or enforc[ing] any law . . . relating to [air
carrier] rates, routes, or services.''
Justices concurring: Ginsburg, Kennedy,
Souter, Breyer, and Chief Justice
Rehnquist.
Justices concurring specially: O'Connor,
Thomas.
Justice dissenting: Stevens.
1100. McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995).
Ohio's prohibition on the distribution of anonymous
campaign literature abridges the freedom of speech. The law,
aimed at speech designed to influence voters in an election,
is a limitation on political expression subject to exacting
scrutiny. Neither of the interests asserted by Ohio
justifies the limitation.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, Ginsburg, and
Breyer.
Justice concurring specially: Thomas.
Justices dissenting: Scalia, and Chief
Justice Rehnquist.
1101. U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 (1995).
An amendment to the Arkansas Constitution denying
ballot access to congressional candidates who have already
served three terms in the House of Representatives or two
terms in the Senate is invalid as conflicting with the
qualifications for office set forth in Article I of the U.S.
Constitution, (specifying age, duration of U.S. citizenship,
and state inhabitancy requirements). Article I sets the
exclusive qualifications for a United States Representative
or Senator.
Justices concurring: Stevens Kennedy,
Souter, Ginsburg, and Breyer.
Justices dissenting: Thomas, O'Connor,
Scalia, and Chief Justice Rehnquist.
1102. Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214 (1995).
Oklahoma may not impose its motor fuels excise tax
upon fuel sold by Chickasaw Nation retail stores on tribal
trust land. The legal incidence of the motor fuels tax falls
on the retailer, located within Indian country, and the
petitioner did not properly raise the issue of whether
Congress had authorized such taxation in the Hayden-
Cartwright Act.
1103. Hurley v. Irish-American Gay Group 115 S. Ct. 2338 (1995).
Application of Massachusetts' public accommodations
law to require the private organizers of a St. Patrick's Day
parade to allow participation in the parade by a gay and
lesbian group wishing to proclaim its members' gay and
lesbian identity violates the First Amendment because it
compels parade organizers to include in the parade a message
they wish to exclude.
[[Page 86]]
1104. Miller v. Johnson, 115 S. Ct. 2475 (1995).
Georgia's congressional districting plan violates
the Equal Protection Clause. The district court's finding
that race was the predominant factor in drawing the
boundaries of the Eleventh District was not clearly
erroneous. The State did not meet its burden under strict
scrutiny review to demonstrate that its districting was
narrowly tailored to achieve a compelling interest.
Justices concurring: Kennedy, Rehnquist,
O'Connor, Scalia, and Thomas.
Justices dissenting: Stevens Ginsburg,
Breyer, and Souter.
1105. Fulton Corp. v. Faulkner, 116 S. Ct. 848 (1996).
North Carolina's intangibles tax on a fraction of
the value of corporate stock owned by North Carolina
residents inversely proportional to the corporation's
exposure to the State's income tax, violates the ``dormant''
Commerce Clause. The tax facially discriminates against
interstate commerce, and is not a ``compensatory tax''
designed to make interstate commerce bear a burden already
borne by intrastate commerce.
1106. Barnett Bank of Marion County v. Nelson, 116 S. Ct. 1103 (1996).
A federal law empowering national banks in small
towns to sell insurance (12 U.S.C. Sec. 92) preempts a
Florida law prohibiting banks from dealing in insurance. The
federal law contains no explicit statement of preemption,
but preemption is implicit because the state law stands as
an obstacle to the accomplishment of one of the federal
law's purposes.
1107. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).
Rhode Island's statutory prohibition against
advertisements that provide the public with accurate
information about retail prices of alcoholic beverages
abridges freedom of speech protected by the First Amendment,
and is not shielded from constitutional scrutiny by the
Twenty-first Amendment. There is not a ``reasonable fit''
between the blanket prohibition and the State's goal of
reducing alcohol consumption.
Justices concurring: Stevens, Scalia (in
part), Kennedy (in part), Souter (in
part), Thomas (in part), and
Ginsburg (in part).
Justices concurring specially: Scalia,
Thomas, O'Connor, Souter, Breyer,
and Chief Justice Rehnquist.
1108. Romer v. Evans, 116 S. Ct. 1620 (1996).
Amendment 2 to the Colorado Constitution, which
prohibits all legislative, executive, or judicial action at
any level of state or local government if that action is
designed to protect homosexuals, violates the Equal
Protection Clause of the Fourteenth Amendment. The
amendment, adopted by statewide referendum in 1992, does not
bear a rational relationship to a legitimate governmental
purpose.
[[Page 87]]
Justices concurring: Kennedy, Stevens,
O'Connor, Souter, Ginsburg, and
Breyer.
Justices dissenting: Scalia, Thomas, and
Chief Justice Rehnquist.
1109. Doctor's Associates, Inc. v. Casarotto, 116 S. Ct. 1652 (1996).
A Montana law declaring an arbitration clause
unenforceable unless notice that the contract is subject to
arbitration appears in underlined capital letters on the
first page of the contract is preempted by the Federal
Arbitration Act.
Concurring Justices: Ginsburg, Stevens,
O'Connor, Scalia, Kennedy, Souter,
Breyer, and Chief Justice Rehnquist.
Justice dissenting: Thomas.
1110. Shaw v. Hunt, 116 S. Ct. 1894 (1996).
North Carolina's congressional districting law,
containing the racially gerrymandered 12th Congressional
District as well as another majority-black district,
violates the Equal Protection Clause because, under strict
scrutiny applicable to racial classifications, creation of
District 12 was not narrowly tailored to serve a compelling
state interest. Creation of District 12 was not necessary to
comply with either section 2 or section 5 of the Voting
Rights Act, and the lower court found that the redistricting
plan was not actually aimed at ameliorating past
discrimination.
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Ginsburg,
Souter, and Breyer.1111. Bush v.
Vera, 116 S. Ct. 1941 (1996).
1111. Bush v. Vera, 116 S. Ct. 1941 (1996).
Three congressional districts created by Texas law
constitute racial gerrymanders that are unconstitutional
under the Equal Protection Clause. The district court
correctly held that race predominated over legitimate
districting considerations, including incumbency, and
consequently strict scrutiny applies. None of the three
districts is narrowly tailored to serve a compelling state
interest.
Justices concurring: O'Connor, Kennedy,
and Chief Justice Rehnquist.
Justices concurring specially: O'Connor,
Kennedy, Thomas, and Scalia.
Justices dissenting: Stevens, Ginsburg,
Breyer, and Souter.
1112. United States v. Virginia, 116 S. Ct. 2264 (1996).
Virginia's exclusion of women from the educational
opportunities provided by Virginia Military Institute denies
to women the equal protection of the laws. A state must
demonstrate ``exceedingly persuasive justification'' for
gender discrimination, and Virginia has failed to do so in
this case.
Justices concurring: Ginsburg, Stevens,
O'Connor, Kennedy, Souter, and
Breyer. Justice concurring
specially: Chief Justice Rehnquist.
Justice dissenting: Scalia.
[[Page 89]]
ORDINANCES HELD UNCONSTITUTIONAL
125. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
The city's refusal, pursuant to an ordinance
prohibiting distribution of commercial handbills on public
property, to allow the distribution of commercial
publications through freestanding newsracks located on
public property, while at the same time allowing similar
distribution of newspapers and other noncommercial
publications, violates the First Amendment.
Justices concurring: Stevens, Blackmun,
O'Connor, Scalia, Kennedy, and
Souter.
Justices dissenting: Chief Justice
Rehnquist, and White and Thomas.
126. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993).
The city's ordinances banning the killing of animals
in a ritual sacrifice are unconstitutional as infringing the
free exercise of religion by members of the Santeria
religion.
Justices concurring: Kennedy, White,
Stevens, Scalia, Souter, Thomas, and
Chief Justice Rehnquist.
Justices concurring specially: Blackmun
and O'Connor.
127. C & A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677 (1994).
The town's ``flow control'' ordinance, which
requires all solid waste within the town to be processed at
a designated transfer station before leaving the
municipality, discriminates against interstate commerce and
is invalid under the Commerce Clause.
Justices concurring: Kennedy, Stevens,
Scalia, Thomas, and Ginsburg.
Justice concurring specially: O'Connor.
Justices dissenting: Souter, Blackmun,
and Chief Justice Rehnquist.
128. City of Ladue v. Gilleo,, 114 S. Ct. 2038 (1994).
The city's ordinance, which prohibits all signs but
makes exceptions for several narrow categories, violates the
First Amendment by prohibiting a resident from placing in
the window of her home a sign containing a political
message. By prohibiting residential signs that carry
political, religious, or personal messages, the ordinance
forecloses ``a venerable means of communication that is both
unique and important.''
[[Page 91]]
SUPREME COURT DECISIONS OVERRULED BY SUBSEQUENT DECISION
Overruling Case Overruled Case(s)
* 205.United States v. Dixon, 509 Grady v. Corbin, 495 U.S. 508
U.S. 688 (1993). (1990).
* 206.Nichols v. United States, 511 Baldasar v. Illinois, 446 U.S.
U.S. 738 (1994). 222 (1980).
* 207.Hubbard v. United States, 115 United States v. Bramblett,
S. Ct. 1754 (1995). 348 U.S. 503 (1955).
* 208.Adarand Constructors, Inc. v. Metro Broadcasting, Inc. v.
Pena, 115 S. Ct. 2097 (1995). FCC, 497 U.S. 547 (1990);
Fullilove v. Klutznick, 448
U.S. 448 (1990) (in part).
* 209.United States v. Gaudin, 115 Sinclair v. United States, 279
S. Ct. 2310 (1995). U.S. 263 (1929).
* 210.Fulton Corp. v. Faulkner, 116 Darnell v. Indiana, 226 U.S.
S. Ct. 848 (1996). 390 (1912).
* 211.Seminole Tribe of Florida v. Pennsylvania v. Union Gas Co.,
Florida, 116 S. Ct. 1114 491 U.S. 1 (1989).
(1996).
* 212.44 Liquormart, Inc. v. Rhode California v. LaRue, 409 U.S.
Island, 116 S. Ct. 1495 109 (1972) (in part);
(1996).
New York State Liquor Auth. v.
Bellanca, 452 U.S. 714 (1981)
(in part);
City of Newport v. Iacobucci,
479 U.S. 92 (1986) (in part).
[[Page 93]]
TABLE OF CASES
44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996)...... 37-39,
77, 86, 91
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).................. 20
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1996)..... 22, 54, 72,
91
Albright v. Oliver, 114 S. Ct. 807 (1994)............................ 70
Alexander v. United States, 509 U.S. 544 (1993).................. 32, 41
Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)
27
Allen v. Wright, 468 U.S. 737 (1984)................................. 19
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)......... 6, 10
American Airlines v. Wolens, 513 U.S. 219 (1995).................. 9, 85
Arave v. Creech, 507 U.S. 463 (1993)................................. 63
Arizona v. Evans, 115 S. Ct. 1185 (1995)............................. 49
Associated Industries v. Lohman, 114 S. Ct. 1815 (1994).............. 83
Austin v. United States, 509 U.S. 602 (1993)......................... 63
Baldasar v. Illinois, 446 U.S. 222 (1980)............................ 91
Barclays Bank v. Franchise Tax Bd. of California, 512 U.S. 298
(1994)............................................................... 8
Barnett Bank of Marion County v. Nelson, 116 S. Ct. 1103 (1996)..... 10,
86
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............... 37, 38
Benjamin v. Jacobson, 935 F. Supp. 332 (S.D.N.Y. 1996)............... 19
Bennis v. Michigan, 116 S. Ct. 994 (1996)............................ 69
Blodgett v. Holden, 275 U.S. 142 (1927).............................. 55
BMW v. Gore, 116 S. Ct. 1589 (1996).............................. 69, 70
Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342 (1996)........ 33, 34
Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481
(1994)....................................................... 27-30, 84
Brecht v. Abrahamson, 507 U.S. 619 (1993)............................ 53
Bush v. Vera, 116 S. Ct. 1941 (1996)............................. 74, 87
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958)............ 24
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).... 6, 7,
89
California Dep't of Corrections v. Morales, 514 U.S. 499 (1995)...... 12
California v. LaRue, 409 U.S. 109 (1972)......................... 77, 91
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).............. 11
Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994)...................... 30
Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691 (1984)............ 77
Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440 (1995).... 28, 29,
41
Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993)...... 20
CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973)................ 31, 32
Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948).......... 6
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S.
557 (1980)....................................................... 36-39
Chapman v. California, 386 U.S. 18 (1967)............................ 53
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993).......................................................... 31, 89
City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)........... 43
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)
36, 89
City of Ladue v. Gilleo, 114 S. Ct. 2038 (1994).................. 44, 89
City of Los Angeles v. Preferred Communications, 476 U.S. 488
(1986).............................................................. 39
City of Newport v. Iacobucci, 479 U.S. 92 (1986)..................... 91
Clements v. Fashing, 457 U.S. 957 (1982)............................. 20
Colorado Republican Campaign Comm. v. FEC, 116 S. Ct. 2309 (1996)
22, 34, 79
Concrete Pipe & Products v. Construction Laborers Pension Trust,
508 U.S. 602 (1993)............................................. 55, 56
Cooper v. Oklahoma, 116 S. Ct. 1373 (1996)........................... 71
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)........... 9
Dalton v. Specter, 511 U.S. 462 (1994)........................... 14, 15
[[Page 94]]
Darnell v. Indiana, 226 U.S. 390 (1912).............................. 91
Davis v. United States, 114 S. Ct. 2350 (1994)....................... 54
Delaware v. Prouse, 440 U.S. 648 (1979).............................. 48
Denver Area Educ. Tel. Consortium v. FCC, 116 S. Ct. 2374 (1996)
40, 41, 81
Department of Agriculture v. Moreno, 413 U.S. 528 (1973)............. 75
Department of Taxation & Finance v. Milhelm Attea & Bros., 512
U.S. 61 (1994)...................................................... 10
Department of Treasury v. Fabe, 508 U.S. 491 (1993)............... 9, 83
District of Columbia v. Greater Washington Bd. of Trade, 506 U.S.
125 (1992)........................................................... 9
Doctor's Associates, Inc. v. Casarotto, 116 S. Ct. 1652 (1996)... 10, 87
Dolan v. City of Tigard, 114 S. Ct. 2309 (1994)...................... 56
Edenfield v. Fane, 507 U.S. 761 (1993)....................... 35, 36, 83
Evans v. Romer, 854 P.2d 1270 (Colo. 1993)........................... 74
Ex parte Virginia, 100 U.S. 339 (1880)............................... 31
Farmer v. Brennan, 511 U.S. 825 (1994)............................... 64
FCC v. Beach Communications, 508 U.S. 307 (1993)................. 54, 72
FDIC v. Meyer, 510 U.S. 471 (1994)................................... 23
Felker v. Turpin, 116 S. Ct. 2333 (1996)..................... 18, 24, 26
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)........................... 68
Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995).......... 30
Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995)......... 34, 38
Frisby v. Schultz, 487 U.S. 474 (1988)............................... 42
Fullilove v. Klutznick, 448 U.S. 448 (1990).......................... 91
Fulton Corp. v. Faulkner, 116 S. Ct. 848 (1996).................. 86, 91
Furman v. Georgia, 408 U.S. 238 (1972)................................ 1
Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967)............. 20
Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211 (1996)
23, 61
Goldberg v. Sweet, 488 U.S. 252 (1989)................................ 7
Grady v. Corbin, 495 U.S. 508 (1990)............................. 52, 91
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995)........ 22
Guaranty Trust Co. v. York, 326 U.S. 99 (1945)....................... 23
Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227 (1995)............. 15
Hagen v. Utah, 510 U.S. 399 (1994)................................... 11
Hans v. Louisiana, 134 U.S. 1 (1890)................................. 68
Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993)............. 21
Harris v. Alabama, 115 S. Ct. 1031 (1995)............................ 63
Heiner v. Donnan, 285 U.S. 312 (1932)................................ 55
Helling v. McKinney, 509 U.S. 25 (1993).............................. 64
Herrera v. Collins, 506 U.S. 390 (1993).......................... 24, 64
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)......................... 45
Hill v. Lockhart, 474 U.S. 52 (1985)................................. 60
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).................... 69, 84
Hubbard v. United States, 115 S. Ct. 1754 (1995)..................... 91
Hurley v. Irish-American Gay Group, 115 S. Ct. 2338 (1995)...... 32, 39,
43, 85
Ibanez v. Florida Bd. of Accountancy, 114 S. Ct. 2084 (1994)......... 35
In re Winship, 397 U.S. 358 (1970)................................... 59
International Union, UMW v. Bagwell, 512 U.S. 821 (1994)......... 18, 59
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60 (1993)..... 6, 8,
12
J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994)............... 73
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510
U.S. 86 (1993)....................................................... 9
Johnson v. Texas, 509 U.S. 350 (1993)................................ 64
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).............. 22
Kotteakos v. United States, 328 U.S. 750 (1946)...................... 53
[[Page 95]]
Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993)
28, 41
Leathers v. Medlock, 499 U.S. 439 (1991)............................. 40
Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961 (1995)....... 31
Lewis v. Casey, 116 S. Ct. 2174 (1996)............................... 71
Lewis v. United States, 116 S. Ct. 2163 (1996)....................... 59
Linda R. S. v. Richard D., 410 U.S. 614 (1973)....................... 19
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)......................... 26
Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977)....... 37
Livadas v. Bradshaw, 512 U.S. 107 (1994)............................. 10
Lockhart v. Fretwell, 506 U.S. 364 (1993)............................ 60
Loving v. United States, 116 S. Ct. 1737 (1996)............... 1, 11, 13
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)........... 20
Lynch v. Donnelly, 465 U.S. 668 (1984)............................... 27
Madsen v. Women's Health Center, 114 S. Ct. 2516 (1994).............. 42
Mapp v. Ohio, 367 U.S. 643 (1961).................................... 53
Markman v. Westview Instruments, Inc., 116 S. Ct. 1384 (1996).... 11, 61
McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995)........ 43, 85
Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996)....................... 9
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)................. 91
Michigan v. Tucker, 417 U.S. 433 (1974).............................. 53
Miller v. Johnson, 115 S. Ct. 2475 (1995)........................ 74, 86
Minnesota v. Dickerson, 508 U.S. 366 (1993).......................... 48
Mississippi v. Louisiana, 506 U.S. 73 (1992)......................... 23
Montana Dep't of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994)..... 51,
84
Montana v. Egelhoff, 116 S. Ct. 2013 (1996).......................... 71
Murray v. Carrier, 477 U.S. 478 (1986)............................... 25
New York State Conf. of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645 (1995).............................. 9
New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981)......... 91
Nichols v. Coolidge, 274 U.S. 531 (1927)............................. 55
Nichols v. United States, 511 U.S. 738 (1994).................... 60, 91
Nixon v. United States, 506 U.S. 224 (1993).......................... 22
Northeastern Fla. Ch. of the Associated Gen. Contractors v. City
of Jacksonville, 508 U.S. 656 (1993)............................ 20, 21
O'Hare Truck Serv., Inc. v. City of Northlake, 116 S. Ct. 2353
(1996).............................................................. 33
O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994)........................ 24
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)............. 35, 38
Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214 (1995)..... 10,
85
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175 (1995)
6, 7, 22
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993)..... 10, 83
One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972)
51
Oregon Waste Systems v. Department of Envtl. Quality, 511 U.S. 93
(1994)........................................................... 7, 83
Ornelas v. United States, 116 S. Ct. 1657 (1996)..................... 47
Parke v. Raley, 506 U.S. 20 (1992)................................... 71
Peacock v. Thomas, 116 S. Ct. 862 (1996)............................. 22
Pennell v. City of San Jose, 485 U.S. 1 (1988)....................... 56
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)...... 68
Pennsylvania v. Labron, 116 S. Ct. 2485 (1996)....................... 48
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)................. 80, 91
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)............. 17, 80
Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986)
37
Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712 (1996)............. 24
Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978)
20
[[Page 96]]
Reich v. Collins, 115 S. Ct. 547 (1994).............................. 69
Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993)........... 20
Reno v. Flores, 507 U.S. 292 (1993).................................. 11
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995)................ 21
Richards v. Jefferson County, 116 S. Ct. 1761 (1996)................. 70
Richmond v. Lewis, 506 U.S. 40 (1992)................................ 64
Romano v. Oklahoma, 114 S. Ct. 2004 (1994)........................... 63
Romer v. Evans, 116 S. Ct. 1620 (1996)........................... 74, 86
Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995).... 28, 41
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995)............ 35-39, 79
Ryder v. United States, 515 U.S. 177 (1995)...................... 15, 21
Sale v. Haitian Centers Council, 509 U.S. 155 (1993)................. 11
Sandin v. Conner, 115 S. Ct. 2293 (1995)............................. 70
Sawyer v. Whitney, 505 U.S. 333 (1995)............................... 25
Schiro v. Farley, 114 S. Ct. 783 (1994).............................. 51
Schlup v. Delo, 513 U.S. 298 (1995).................................. 25
Scott v. Illinois, 440 U.S. 367 (1979)............................... 60
Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996).... 22, 67,
80, 91
Shaw v. Hunt, 116 S.Ct. 1894 (1996).............................. 74, 87
Shaw v. Reno, 509 U.S. 630 (1993).................................... 74
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)
19
Sinclair v. United States, 279 U.S. 263 (1929)....................... 91
Smiley v. Citibank, 116 S. Ct. 1730 (1996)............................ 9
Soldal v. Cook County, 506 U.S. 56 (1992)............................ 47
South Dakota v. Bourland, 508 U.S. 679 (1993)........................ 11
Stansbury v. California, 114 S. Ct. 1526 (1994)...................... 54
Stone v. Powell, 428 U.S. 465 (1976)............................. 53, 54
Sullivan v. Louisiana, 508 U.S. 275 (1993)....................... 59, 71
Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967)............. 20
Torcaso v. Watkins, 367 U.S. 488 (1961).............................. 27
Tuggle v. Netherland, 116 S. Ct. 283 (1995).......................... 64
Tuilaepa v. California, 114 S. Ct. 2630 (1994)....................... 63
Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994)........ 39, 40
Turner v. Fouche, 396 U.S. 346 (1970)................................ 20
TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993)........... 69
U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18
(1994).............................................................. 20
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)........... 2, 85
United States v. Bramblett, 348 U.S. 503 (1955)...................... 91
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)................. 48
United States v. Carlton, 114 S. Ct. 2018 (1994)..................... 55
United States v. Dixon, 509 U.S. 688 (1993)...................... 52, 91
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)....... 35-38
United States v. Gaudin, 115 S. Ct. 2310 (1995).................. 59, 91
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).................. 45
United States v. Hemme, 476 U.S. 558 (1986).......................... 55
United States v. IBM Corp., 116 S. Ct. 1793 (1996)....... 11, 12, 22, 79
United States v. Jacobsen, 466 U.S. 109 (1984)....................... 47
United States v. James Daniel Good Real Property, 510 U.S. 43
(1993).............................................................. 70
United States v. Lopez, 514 U.S. 549 (1995)................ 4, 6, 65, 80
United States v. National Treasury Employees Union, 115 S. Ct.
1003 (1995)..................................................... 33, 80
United States v. NTEU, 513 U.S. 454 (1995)........................... 15
United States v. One Assortment of 89 Firearms, 465 U.S. 354
(1984).............................................................. 51
United States v. Padilla, 508 U.S. 77 (1993)......................... 50
[[Page 97]]
United States v. Ursery, 116 S. Ct. 2135 (1996)...................... 51
United States v. Virginia, 116 S. Ct. 2264 (1996)................ 73, 87
Untermyer v. Anderson, 276 U.S. 440 (1928)........................... 55
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)................ 55
Vernonia School Dist. v. Acton, 115 S. Ct. 2386 (1995)............... 49
Victor v. Nebraska, 511 U.S. 1 (1994)................................ 71
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748 (1976).................................... 37, 38
Voinovich v. Quilter, 507 U.S. 146 (1993)............................ 74
Warth v. Seldin, 422 U.S. 490 (1975)................................. 19
Waters v. Churchill, 114 S. Ct. 1878 (1994).......................... 34
Weiss v. United States, 510 U.S. 163 (1994).......................... 15
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)......... 6, 7, 84
Whren v. United States, 116 S. Ct. 1769 (1996)....................... 48
Wilson v. Arkansas, 115 S. Ct. 1914 (1995)........................... 47
Wilton v. Seven Falls Co., 515 U.S. 277 (1995)....................... 20
Wisconsin v. City of New York, 116 S. Ct. 1091 (1996)................. 4
Wisconsin v. Mitchell, 508 U.S. 476 (1993)....................... 32, 41
Withrow v. Williams, 507 U.S. 680 (1993)......................... 53, 54
Wood v. Bartholomew, 116 S. Ct. 7 (1995)............................. 71
Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619 (1996)................. 23
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)...... 38
Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).... 27, 28
[[Page 99]]
INDEX
Abortion
protests, injunctions, First Amendment protections................. 42
Admiralty
maritime torts..................................................... 22
Advertising
compelled disclosure of information................................ 38
Affirmative action
federal legislation subject to strict scrutiny..................... 72
Appointments Clause
military judges.................................................... 14
Association, right of
parade organizers, control of parade message....................... 32
Cable Television
First Amendment protections........................................ 39
Campaign finance
independent party expenditures, First Amendment.................... 34
Census
decision not to make statistical adjustment......................... 4
Commerce Clause
discriminatory local solid waste ``flow control'' law............... 7
discriminatory state taxation.................................... 6, 7
state taxation, apportionment, multinational corporation............ 9
Commerce power
invalidity of Gun-Free School Zones Act............................. 4
Congress
power under Commerce Clause......................................... 4
qualifications of Members, term limits.............................. 2
Congressional districting
racial gerrymandering, bizarrely shaped districts.................. 74
Contempt
distinction between civil and criminal contempt.................... 18
Counsel, assistance of
ineffective counsel, grounds for new trial......................... 60
Death penalty
military justice, standards promulgated by President................ 1
permissible jury instructions...................................... 63
Delegation
military justice, President's authority as Commander-in-Chief... 1, 13
Diversity of Citizenship
federal court cases, choice of law................................. 23
Double jeopardy
same conduct test.................................................. 52
sentence enhancement............................................... 52
Drug testing
public high school athletes........................................ 49
Due Process
retroactive taxation............................................... 55
solitary confinement of prisoners.................................. 70
Ex Post Facto Clause
decreasing frequency of parole-suitability hearings................ 12
Excessive fines
civil forfeiture................................................... 63
[[Page 100]]
Exclusionary rule
federal habeas corpus, review of Miranda claims.................... 54
False statements
federal statute, materiality as issue for jury..................... 59
Federalism
Gun-Free School Zones Act, invalidity.............................. 65
principles reflected in commerce power analysis..................... 5
First Amendment
protected expression, state authority under 21st Amendment......... 77
state action requirement........................................... 31
Forfeiture
innocent joint owner, car used in prostitution..................... 69
non-punitive nature, double jeopardy analysis...................... 51
Government contractors
free speech rights................................................. 33
Gun-Free School Zones Act
invalid as exceeding congressional commerce power............... 4, 65
Habeas corpus
claim of innocence, capital cases.................................. 64
statutory limitations.............................................. 24
Homosexuals
Colorado constitutional amendment limiting local laws concerning
74
Honoraria ban
government employees, free speech rights........................... 33
Impeachment
judicial review of Senate trial, ``political question''............ 15
Import-Export Clause
federal excise tax on insurance for exported goods................. 11
Indian Gaming Regulatory Act
invalidity, abrogation of state immunity in federal court.......... 67
Injunctions
public demonstrations, First Amendment limitations................. 42
Judicial review
preclusion of review, military base closures....................... 14
Westfall Act, Federal Tort Claims Act.............................. 15
Jury trial
civil, when required............................................... 61
criminal, mixed questions of law and fact.......................... 59
when required, multiple petty offenses............................. 59
Limitations period
retroactive change, final judgments, unconstitutionality........... 17
Military justice
appointment of military judges..................................... 14
death penalty, President's promulgation of standards................ 1
Miranda rule
federal habeas corpus claim........................................ 53
waiver of rights................................................... 54
Mootness
appropriateness of vacatur as remedy............................... 20
Newsracks
use on public property, ban limited to commercial materials........ 36
Parades
organizers, right to control parade message........................ 43
[[Page 101]]
Political question
impeachment proceedings, judicial review....................... 15, 22
Preemption
Medical Device Amendments........................................... 9
Press, freedom of
cable television................................................... 39
Prisons
Prison Litigation Reform Act, restrictions on litigation........... 19
Punitive damages
amount, due process constraints.................................... 69
Racial discrimination
affirmative action, federal legislation, strict scrutiny........... 72
Racial gerrymandering
``bizarre'' shape of congressional districts....................... 74
Religion: Establishment Clause
equal access of religious groups to school property................ 28
public funding for sign-language interpreter in public schools
27
religious displays on public property.............................. 29
special school district for religioius sect........................ 29
test for validity.................................................. 27
Religion: Free Exercise
animal sacrifice................................................... 31
Religious Freedom Restoration Act.................................. 30
Retroactivity
Supreme Court ruling, cases still on direct review................. 21
taxation........................................................... 55
Search and seizure
``knock and announce'' rule........................................ 47
definition of ``seizure''.......................................... 47
drug testing of public high school athletes........................ 49
frisk, ``plain touch'' seizure of contraband....................... 48
traffic violation, pretextual stop................................. 48
Separation of powers
changed position of Justice Department............................. 13
delegation to President in role as Commander-in-Chief............... 2
legislative alteration of final judgments of courts................ 17
Sex discrimination
jury selection..................................................... 73
military college................................................... 73
Speech, commercial
beer labels, display of alcohol content............................ 35
compelled disclosure in advertising................................ 38
liquor ads, price information...................................... 37
reasonable fit between ends and means of regulation................ 36
Speech, freedom of
anonymous advocacy................................................. 43
cable television................................................... 39
hate crimes, enhancement of criminal penalty....................... 41
in-person solicitation by CPAs..................................... 35
independent government contractors............................. 33, 34
parade organizers, right to control parade message................. 43
public demonstrations, injunctions................................. 42
public employees, honoraria ban.................................... 33
[[Page 102]]
residential signs.................................................. 44
signs, use of utility poles........................................ 43
Standing to sue
suit by organization on behalf of members.......................... 19
Stare decisis
conflicting views of Justices...................................... 22
States
immunity in federal courts, congressional power to abrogate........ 67
Taking of property
land dedications, permit conditions................................ 56
Taxation, Federal
excise tax, import-export clause................................... 12
retroactive application............................................ 55
Taxation, State
apportionment, multinational corporation, franchise tax............. 8
discrimination against interstate commerce....................... 6, 7
Term limits
Members of Congress, state-imposed limitations...................... 2
Twenty-first Amendment
authority of states, regulation of expressive behavior............. 77
prohibition against liquor price advertising not shielded by....... 77
Vacatur
remedy for mootness, limitations................................... 20
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