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"We the People"
Constitution Day 2006



September 19, 2006
University of Minnesota Law School



One CLE credit.



I. Introduction and welcome. Jim Chen

First Person Plural: Musings on the meaning of "We the People."

II. First Amendment Law—Rumsfeld v. FAIR, 547 U.S. ___, 126 S. Ct. 1297 (2006).Dale Carpenter

  • Background
    • The Solomon Amendment: Antidiscrimination in the law schools; The federal reaction; Metastasizing
    • The litigation
  • The issue not decided – unconstitutional conditions
    • The problem of unconstitutional conditions; The opinion and the doctrine; A future of unconstitutional conditions
  • The Opinion
    • Free speech: Compelled speech; Hosting third-party speech; Expressive conduct .
      • From context-free to…; The new standard: "inherently expressive;" The government’s interest.
    • Freedom of association: Membership
    • Deference to associations
  • Conclusion

III. Military/First Amendment Law. Mike Paulsen.

  • Professor Paulsen will focus on the Supreme Court's decision in Hamdan v. Rumsfeld, striking down the present regulations authorizing use of military commissions to try unlawful combatants for crimes against the law of war. A critical analysis of this important decision will be presented.

IV. Article III Standing and Statutory Interpretation. Kristin Hickman, Alexandra Klass

  • Article III Standing. Massachusetts v. U.S. EPA: Do the Petitioners have Article III standing to challenge EPA’s decision not to regulate CO2 emissions?
  • Statutory Interpretation. Massachusetts v. U.S. EPA: Was the agency correct in concluding that it does not have the authority to regulate CO2? Did the agency properly exercise its discretion in deciding not to regulate CO2?

V. Freedom of Speech. Heidi Kitrosser

  • Freedom to Speak About the Government The punishment both of classified information leaks and of government employee speech pertain to a core element of free speech: the right to speak about the government.
  • Punishing Leaks of Classified Information: Some background on the classified information system and the punishment of classified information leaks; Current controversies involving classified information leaks; Opinion denying motion to dismiss in U.S. v. Rosen (E.D. Va. 2006).
  • Punishing Speech by Government Employees: Doctrinal background; Garcetti v. Ceballos

VI. State Taxation and the Dormant Commerce Clause. Morgan Holcomb

  • Cuno v. Daimler Chrysler, 126 S. Ct. 1854 (2006): Dormant Commerce Clause viewed through the State taxation lens
    • "The Congress shall have the power ... [t]o regulate Commerce with foreign nations, and among the several States, and the Indian Tribes." U.S. Const., art. 1, section 8
    • Dormant commerce clause: The Commerce Clause is an affirmative grant of power. The Dormant Commerce Clause is the notion that even in the absence of Congressional action, the States may not discriminate against or burden the flow of interstate commerce.
    • Purposes of the Dormant Commerce Clause
    • So what is forbidden taxation discrimination? What’s the "rule"?
      • Historic trajectory that culminated in 1977 in Complete Auto Transit
      • The four-part test
      • The third prong is where the action is: What does it mean to "discriminate"?
  • Onto this cluttered stage marches the great state of Ohio, with its various tax incentives, challenged in Cuno v. Daimler Chrysler: The set up; Lower courts' actions; What did the Supreme Court do? Or, more to the point, what didn't it do?
  • The status of incentives today

VII. Criminal Procedure -- Hudson v. Michigan, 126 S.Ct. 2159 (2006). Ted Sampsell-Jones

  • Knock-and-announce violations not subject to the exclusionary rule.
  • Questioning the continuing vitality of the knock-and-announce rule.
  • Questioning the continuing vitality of the exclusionary rule.
  • Remedial alternatives: Section 1983 and qualified immunity.