Teaching Freedom: Exclusionary Rights of Student Groups

Progressive, antisubordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions' nondiscrimination policies. The leading cases addressing the conflicts between nondiscrimination policies and exclusionary student groups are polarized and distorted by their culture war context. That context tainted the leading authority, Boy Scouts of America v. Dale, and is especially salient in the student expressive association cases, many of which are being aggressively litigated by religious groups with strong antihomosexuality goals. The strength of these First Amendment claims can be difficult to recognize in this context. Dean Howarth attempts to hold new ground, in which protecting the First Amendment association rights of exclusion by even antihomosexual student groups is consistent with a deep commitment to improved justice for sexual minorities. Dean Howarth discusses the leading high school and law school cases, and presents the strong First Amendment doctrinal analysis that should control. She critiques as weak the equality claim at stake in preventing a faith-based student group from limiting its membership and officers to adherents of that faith

The Thirteenth Amendment as Basis for Racial Truth & Reconciliation

Article published in the Arizona Law Review

Unveiling the Distinction between the University and its Academic Researchers: Lessons for Patent Infringement and University Technology Transfer

This Article explores the idea that a faculty member acting in the role of an academic researcher in the scientific disciplines should be viewed in the context of patent law as an autonomous entity within the university rather than as an agent of the university. The structure of the university laboratory within the university and the social norms associated with the activities that members of the research laboratory conduct supports such a view. Additionally, the data from the implementation of the Bayh-Dole Act reveal that universities and faculty scientists have different goals and motivations regarding the transfer of new technology to the private sector. Acknowledging a distinction between the university and its academic researchers would revive the application of the experimental use exception as a defense to patent infringement for the scientists who drive the innovation economy of our country. Also important, this distinction has implications for the way that entrepreneurship is defined in the context of academic researchers. A better understanding of academic entrepreneurship may lead universities to restructure incentives to encourage academic researchers to participate in transferring new inventions from the laboratory to the private sector

Unveiling the Distinction between the University and its Academic Researchers: Lessons for Patent Infringement and University Technology Transfer

This Article explores the idea that a faculty member acting in the role of an academic researcher in the scientific disciplines should be viewed in the context of patent law as an autonomous entity within the university rather than as an agent of the university. The structure of the university laboratory within the university and the social norms associated with the activities that members of the research laboratory conduct supports such a view. Additionally, the data from the implementation of the Bayh-Dole Act reveal that universities and faculty scientists have different goals and motivations regarding the transfer of new technology to the private sector. Acknowledging a distinction between the university and its academic researchers would revive the application of the experimental use exception as a defense to patent infringement for the scientists who drive the innovation economy of our country. Also important, this distinction has implications for the way that entrepreneurship is defined in the context of academic researchers. A better understanding of academic entrepreneurship may lead universities to restructure incentives to encourage academic researchers to participate in transferring new inventions from the laboratory to the private sector

Government as Liberty's Servant: The

This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately reflects the Constitution’s core Liberty-First ideals, while also recognizing the proper police-power role of government

Do

Conventional wisdom holds that a municipal corporation receives no protection from the equal protection and due process clauses as against its creating state. The reasoning is that municipal corporations, as mere subunits or instrumentalities of the state, are simply ineligible for such constitutional protections. This article argues that municipal corporations, as ""persons"" under the Constitution, do in fact have standing to assert procedural due process claims against their creating states in cases not involving substantive matters of the state’s internal political organization. Judicial recognition of this principle would advance important values of fairness and doctrinal consistency in state-local relations, and accord an appropriate measure of deference to those constitutionally-maligned “creatures of the state,” municipal corporations

Reading Tea Leaves in Federal Election Commission v. Wisconsin Right to Life: Hope for a Buckley Evolution?

During its 2006-07 Term the U.S. Supreme Court decided Federal Election Commission v. Wisconsin Right to Life, Inc., the latest in a long line of cases sprouting from the seminal 1976 First Amendment campaign finance case, Buckley v. Valeo. In Wisconsin Right to Life, the Court concluded that Section 203 of the federal Bipartisan Campaign Reform Act of 2002, prohibiting the use of corporate funds to finance “electioneering communications” during a specified pre-election period, constituted an as-applied violation of a non-profit corporation’s free speech rights. Wisconsin Right to Life offers useful insights into the Roberts Court’s thinking on the lively question of the propriety of legislative efforts to regulate the financing of political campaigns. On one hand the case demonstrates a Court properly skeptical of laws proscribing constitutionally-protected individual rights (here freedom of expression); on the other, a focused parsing of the principal, concurring, and dissenting opinions uncovers the potential for a coalition of Justices able to undertake the necessary work of evolving Buckley into a socially-legitimate constitutional regime equipped to address meaningfully the especially invidious aspects of Big Money in modern politics. This essay offers thoughts on both themes

A Proposal to Amend the Michigan Zoning Enabling Act to Allow Amortization of Nonconforming Uses

This article suggests that the Michigan legislature should amend the Michigan Zoning Enabling Act in order to explicitly allow state and local government to amortize nonconforming property uses under limited circumstances. While the current prohibition on amortization protects individual rights and is thus laudable as a liberty-friendly law, it goes too far by categorically refusing to give any account for the public interest. A revised statute allowing amortization, but only when the government satisfies a substantial burden to demonstrate its “reasonableness,” including a showing that the property to be amortized can be put to reasonable alternate use, would properly recognize important (albeit competing) individual and collective interests. The article concludes, moreover, after examining the prohibition’s statutory history and Michigan Supreme Court precedent, that the Michigan Court would have strong basis to uphold such a statutory revision

Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause. This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause, and that such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone - with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do

Zenith Radio Corp. v. United States: The Nadir of the U.S. Trade Relief Process

In contrast to the preceding article, Professor Kennedy argues that executive discretion in trade remedies often destroys the protection for domestic industry that the U.S. trade relief process intends to give. As a background for his discussion, Professor Kennedy uses the protracted litigation over Zenith Radio Corporation’s challenge to a Commerce Department settlement of massive antidumping duties imposed against Japanese television importers. Professor Kennedy concludes that the Carter Administration’s settlement of all claims for antidumping duties, for approximately one-half of the duties originally imposed, denied meaningful relief to American industries. Professor Kennedy asserts Congress intended to limit executive discretion in antidumping law under the Trade Agreements Act of 1979, but that the courts in Zenith Radio misconstrued congressional intent. Professor Kennedy concludes that Congress should expressly limit executive discretion in trade relief in legislation such as the Omnibus Trade Bill