An independent student press, free from pior restraint, is essential to the university educational process. High School student newpapers were made subject to censorship after the 1988 Hazelwood case in which the Supreme Court decided that school officials could censor high school student newspapers as long as their reasons for doing so were related to legitimate pedaloigcal concerns. It was assumed that Hazelwood was only applicable to high school newspapers until the Seventh Circuit's 2005 ruling in Hosty v. Carter, which extended the Hazelwood framework to college and university newspapers; subsequently, the U.S. Supreme Court declined to review the case. This article examines the legal history surrounding high school and university newpapers, particularly the precedents that have consistently protected university newspapers from censorship. This article concludes by recommending that the Supreme Court should step in to resolve the circuit split and restore the First Amendment protections to College and University newspapers.
The general standard for determining the commission of a substantive due process constitutional tort asks whether a state actor's conduct is so egregious as to shock the contemporary conscience. The standard attempts to define the contours of liability of state actors under Section 1983 of the U.S. Code for violating the rights of private parties under the Due Process Clause of the Fourteenth Amendment. This approach, however, is inadequate. First, the standard conflates duty and intent. The Due Process Clause does not as a general proposition impose a constitutional duty to provide governmental aid, therefore at the outset a state actor has the duty not to shock the conscience only should he act; in turn the justification for acting, and the level of egregiousness of such actions, will depend on his intent to act. Second, the shocks-the-conscience standard is inherently subjective because it depends on an expression of the Court's contemporary conscience. This uncertainty causes discrepancies among the circuits' handling of substantive due process claims, hindering the development of clear-cut guidelines on the threshold of state actor liability. Replacing the shocks-the-conscience standard with a more traditional balancing approach would clarify the contours of a substantive due process constitutional tort claim.
The question of how one interprets the Constitution is fundamental to all aspects of Constitutional law. Originalism, a method of interpretation that promotes a return to the “original” intent of the law or meaning of the text, offers an allure of subjective interpretation. This paper analyzes two opposing originalist ideologies: “intentionalism,” which turns to the legislative intent behind the Constitution, and “textualism,” which focuses exclusively on the extant text. Placing these two doctrines in opposition to one another reveals an inherent contradiction within the originalist ideal itself.
Moral values embodied within the modern professional military ethic have shaped the application of the Uniform Code of Military Justice (UCMJ), which is used to enforce discipline and punish conduct prejudicial to the good order of the command, or otherwise serves to bring the armed forces into public disrepute. Consequently, military commanders and judge advocates have embraced Article 134, UCMJ, and in particular, the article's “Discredit Clause,” as an effective legal device to enforce discipline, while preserving the public's confidence by criminalizing conduct contrary to the high moral standards each soldier and officer assumes upon taking the oath of service. This article surveys the historical and legal contexts that ground Article 134 prosecutions and proposes a defense supporting the broad, but reasonable, use of law to enforce militarily-defined moral standards.
The dissent of Associate Justice John McLean in the famed 1857 Dred Scott case has been disparaged by some as the Justice's self-promotion of his presidential ambitions. McLean was indeed politically ambitious and aspired to be a Presidential candidate. However, thanks to eminent law librarian Ervin H. Pollack we have a more satisfactory basis for evaluating whether McLean's dissent was a fair and impartial analysis or a statement by a politicized judge. In an 1817 opinion published by Professor Pollack, McLean expresses the same opposition to slavery that he would put forth forty years later. This article is an exploration of the language used by John McLean in both opinions how it affirms his opposition to slavery.
This article explores a heavily litigated issue since civil RICO's enactment - its unclear statutory scope and private party standing. To illustrate this issue, this comment explores recent RICO litigation related to the unlawful hiring of undocumented workers as an example of a congressionally supported application of civil RICO, but in a manner wholly unrelated to organized crime or the mafia. While the Supreme Court has continued to limit civil RICO's outer boundaries, Congress seems to go the opposite direction by expanding the statute.
