1,721,058 research outputs found
Arizona State Law Journal
No full textDistinguishing private action from government action is the first question of constitutional law. The distinction blurs most when the government and private actors jointly cause harm. Not surprisingly, then, the Supreme Court's cases in this gray area have been inconsistent. For example, state court enforcement of a private racially restrictive covenant is government action, but agency placement of a child in a home where the child is abused is private action. The ad hoc nature of these decisions reflects a reluctance to fully embrace joint government-private causation of constitutional harm: Without a limiting principle, doing so would threaten to convert all private action into government action.|The concept of 'social capital' provides a needed limiting principle. Social capital is the value that lies in one's network of relationships. Specifically, social capital creates value through enforceable trust: That is, members of a community trust that other members will follow certain norms of behavior, and that trust is enforced by a threat of informal punishment (e.g., ostracism) for violating the community's norms. Constitutional law ought to recognize that government action can interact with private norms (created by enforceable trust) and, in doing so, burden constitutional values.|This Article argues that the government violates the Constitution when a private group improperly uses government power or property to enforce the group's social capital. Through enforceable trust, social capital leads to predictable behavior - adherence to group norms. When government regulates in an area with strong social capital, that government action might also have predictable effects. The Supreme Court already holds the government responsible for the predictable effects of mandatory disclosure laws on unpopular groups, that is, groups whose beliefs or behavior violate prevailing norms. When the government requires an unpopular group to disclose its members, and disclosure will likely lead to threats and harassment against the members, the disclosure law violates the First Amendment.|This Article extends the lessons of social capital to the case of private prayer at public occasions. Consider a private prayer recited at a public high school football game. If all in attendance are at liberty to object to or abstain from the prayer, the prayer would not violate current Establishment Clause doctrine. Yet, objecting to the prayer may violate local norms of religious belief or practice, opening a person to harassment and retaliation, just as the disclosure law did to members of unpopular groups. The religious objector falls into a gap in Establishment Clause protection, and this Article proposes a legal test to close the gap.2Published prior to CreightonPublished prior to Creighton585-6494
William & Mary Law Review
No full text4Published prior to CreightonPublished prior to Creighton1191-12873
SMU Law Review
No full textWhen it comes to domestic surveillance, even in the name of foreign intelligence, one constitutional challenge is to balance suspicion of and confidence in executive power - to leave the executive flexibility to meet changing threats, while ensuring that flexibility is not a pretext for abuse. To address this challenge, this Essay draws on expertise from an area of private law: the design, implementation, and operation of corporate compliance and ethics programs. A corporate compliance and ethics program consists of an organization's code of conduct, policies, and procedures that help achieve compliance with relevant laws as well as the organization's ethical standards. My thesis is that constitutional separation of powers analysis ought to incorporate lessons from corporate compliance and ethics programs. Over the last half century, businesses have accumulated vast expertise on checking and balancing the exercise of corporate power to protect shareholder value. The federal government ought to employ similar measures to protect our constitutional values. Corporate compliance and ethics best practices, then, should guide analysis of whether a given exercise of federal power incorporates adequate checks against abuse.4Published prior to CreightonPublished prior to Creighton1571-16036
Notre Dame Law Review
No full textThis Article argues that the federal statute requiring election of the United States House of Representatives by single-member districts is unconstitutional. Simply put, this statute, which was first enacted in 1842, commandeers the states to draw single-member congressional districts every ten years. Members of the 1842 Congress hotly debated and carefully considered the constitutionality of commandeering the states to make law, using many methods of constitutional argument employed by courts and commentators today: text, history, structure, and prior government practice. The statute passed narrowly and has never been judicially challenged.|Given the Supreme Court's holding in New York v. United States, I argue that the federal districting statute amounts to Unconstitutional Politics. I carefully examine the relevant constitutional text, structure, history, precedent, and prior government practice, and conclude that if Congress wants the House elected by single-member districts, Congress must draw the districts for each state. Otherwise, states may experiment with other electoral systems, such as at large or multi-member districts, as they see fit.2Published prior to CreightonPublished prior to Creighton519-6417
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