[Senate Document 106-27]
[From the U.S. Government Publishing Office]



  

This publication supplements Senate Document 103-6, The Constitution of 
                               the United
  States of America: Analysis and Interpretation--it should be inserted
          in the pocket on the inside back cover of that volume

 106th Congress                                                Document
                                 SENATE

   2d Session                                                 No. 106-27

________________________________________________________________________

 
                            THE CONSTITUTION
                                 OF THE
                        UNITED STATES OF AMERICA
                       ANALYSIS AND INTERPRETATION

                               __________

                             2000 SUPPLEMENT

                ANALYSIS OF CASES DECIDED BY THE SUPREME

               COURT OF THE UNITED STATES TO JUNE 28, 2000

  


                           George A. Costello

                            Kenneth R. Thomas

                                 Editors

                            David M. Ackerman

                               Henry Cohen

                              Robert Meltz

                              Contributors

                     U.S. GOVERNMENT PRINTING OFFICE

69-557 CC                    WASHINGTON : 2000
________________________________________________________________________

 For sale by the Superintendent of Documents, U.S. Government Printing 
                                 Office

                          Washington, DC 20402




                                ARTICLE I

DELEGATION OF LEGISLATIVE POWER
The Effective Demise of the Nondelegation Doctrine
[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 premeditated 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\ 517 U.S. 748 (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, 517 U.S. at 755-56, a point on which Justice 
            Thomas disagreed, id. at 777.
                    \4\ Rule for Courts-Martial; see 517 U.S. at 754.
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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\ 517 U.S. at 771-74.
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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 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 758-59.
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--The Regulatory State
[P. 82, add to n.106:]
                Notice Clinton v. City of New York, 524 U.S. 417 (1998), 
            in which the Court struck down what Congress had intended to 
            be a delegation to the President, finding that the authority 
            conferred on the President was legislative power, not 
            executive power, which failed because the Presentment Clause 
            had not and could not have been complied with. The 
            dissenting Justices argued that the law, the Line Item Veto 
            Act, was properly treated as a delegation and was clearly 
            constitutional. Id. at 453 (Justice Scalia concurring in 
            part and dissenting in part), 469 (Justice Breyer 
            dissenting).
QUALIFICATIONS OF MEMBERS OF CONGRESS
Exclusivity of Constitutional Qualifications
--Congressional Additions
[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, 
            which would hold that Congress, for different reasons, could 
            not add to qualifications, although the States could. Id. at 
            875-76.
--State Additions
[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 seven 
            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, nine years' citizenship, and being an inhabitant 
            of the State at the time of election.
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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 respecting 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 
            underlying the Constitution's adoption. 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 powers 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 relation to the 
            States, an issue at the core of many controversies today.

APPORTIONMENT OF SEATS IN THE HOUSE
The Census Requirement
[P. 115, add to n.317:]
                Another census controversy was resolved in Wisconsin v. 
            City of New York, 517 U.S. 1 (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.
THE LEGISLATIVE PROCESS
Presentation of Resolutions
[P. 144, add new topic at end of section:]

                    The Line Item Veto.--For more than a century, United 
            States Presidents had sought the authority to strike out of 
            appropriations bills particular items, to veto ``line 
            items'' of money bills and sometimes legislative measures as 
            well. Finally, in 1996, Congress approved and the President 
            signed the Line Item Veto Act.\14\ The law empowered the 
            President, within five days of signing a bill, to ``cancel 
            in whole'' spending items and targeted, defined tax 
            benefits. In acting on this authority, the President was to 
            determine that the cancellation of each item would ``(i) 
            reduce the Federal budget deficit; (ii) not impair any 
            essential Government functions; and (iii) not harm the 
            national interest.'' \15\ In Clinton v. City of New 
            York,\16\ the Court held the Act to be unconstitutional 
            because it did not comply with the Presentment Clause.
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                    \14\ Pub. L. No. 104-130, 110 Stat. 1200, codified 
            in part at 2 U.S.C. Sec. Sec. 691-92.
                    \15\ Id. at Sec. 691(a)(A).
                    \16\ 524 U.S. 417 (1998).
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                    Although Congress in passing the Act considered 
            itself to have been delegating power,\17\ and although the 
            dissenting Justices would have upheld the Act as a valid 
            delegation,\18\ the Court instead analyzed the statute under 
            the Presentment Clause. In the Court's view, the two bills 
            from which the President subsequently struck items became 
            law the moment the President signed them. His cancellations 
            thus amended and in part repealed the two federal laws. 
            Under its most immediate precedent, the Court continued, 
            statutory repeals must conform to the Presentment Clauses's 
            ``single, finely wrought and exhaustively considered, 
            procedure'' for enacting or repealing a law.\19\ In no 
            respect did the procedures in the Act comply with that 
            clause, and in no way could they. The President was acting 
            in a legislative capacity, altering a law in the manner 
            prescribed, and legislation must, in the way Congress acted, 
            be bicameral and be presented to the President after 
            Congress acted. Nothing in the Constitution authorized the 
            President to amend or repeal a statute unilaterally, and the 
            Court could construe both constitutional silence and the 
            historical practice over 200 years as ``an express 
            prohibition'' of the President's action.\20\
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                    \17\ E.g., H.R. Conf. Rep. No. 104-491, 104th Cong., 
            2d Sess., 15 (1996) (stating that the proposed law 
            ``delegates limited authority to the President'').
                    \18\ 524 U.S. at 453 (Justice Scalia concurring in 
            part and dissenting in part); id. at 469 (Justice Breyer 
            dissenting).
                    \19\ 524 U.S. at 438-39 (citing and quoting INS v. 
            Chadha, 462 U.S. 919, 951 (1983).
                    \20\ 524 U.S. at 439.
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POWER TO REGULATE COMMERCE
Definition of Terms
--Federalism Limits on Exercise of Commerce Power
[P. 167, add to n.619, immediately after New York v. United 
    States:]
                See also Printz v. United States, 521 U.S. 898 (1997).
The Commerce Clause as a Source of National Police Power
--Is There an Intrastate Barrier to Congress' Commerce 
    Power?
[P. 206, add to n.818:]
                In a later case the Court avoided the constitutional 
            issue by holding the statute inapplicable to the arson of an 
            owner-occupied private residence. Jones v. United States, 
            120 S. Ct. 1904 (2000). An owner-occupied building is not 
            ``used'' in interstate commerce within the meaning of the 
            statute, the Court concluded.
[P. 207, add to text following n.820:]

                    For the first time in almost 60 years,\21\ the Court 
            invalidated a federal law as exceeding Congress' authority 
            under the Commerce Clause.\22\ The statute was a provision 
            making it a federal offense to possess a firearm within 
            1,000 feet of a school.\23\ 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.\24\ 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,\25\ 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.'' \26\
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                    \21\ The last such decision had been Carter v. 
            Carter Coal Co., 298 U.S. 238 (1936).
                    \22\ 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.
                    \23\ The Gun-Free School Zones Act of 1990, Pub. L. 
            No. 101-647, Sec. 1702, 104 Stat. 4844, 18 U.S.C. 
            Sec. 922(q)(1)(A). Congress subsequently amended the section 
            to make the jurisdiction turn on possession of ``a firearm 
            that has moved in or that otherwise affects interstate or 
            foreign commerce.'' Pub. L. No. 104-208, Sec. 657, 110 Stat. 
            3009-370.
                    \24\ 514 U.S. at 556-57, 559.
                    \25\ For a recent example of such regulation, see 
            Reno v. Condon, 120 S. Ct. 666 (2000) (information about 
            motor vehicles and owners, regulated pursuant to the 
            Driver's Privacy Protection Act, and sold by states and 
            others, is an article of commerce).
                    \26\ 514 U.S. at 558-59.
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                    Clearly, said the Court, the criminalized activity 
            did not implicate the first two categories.\27\ 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 enterprise.'' 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.'' \28\ 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.'' \29\ 
            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.\30\ 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.'' \31\
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                    \27\ Id. at 559.
                    \28\ Id. at 559-61.
                    \29\ Id. at 561.
                    \30\ Id. at 563-68.
                    \31\ Id. at 564.
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                    Whether Lopez bespoke a Court determination to 
            police more closely Congress' exercise of its commerce 
            power, so that it would be a noteworthy case,\32\ or whether 
            it was 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, was not immediately clear. The 
            Court's decision five years later in United States v. 
            Morrison,\33\ however, suggests that stricter scrutiny of 
            Congress' commerce power exercises is the chosen path, at 
            least for legislation that falls outside the area of 
            economic regulation.\34\ The Court will no longer defer, via 
            rational basis review, to every congressional finding of 
            substantial effects on interstate commerce, but instead will 
            examine the nature of the asserted nexus to commerce, and 
            will also consider whether a holding of constitutionality is 
            consistent with its view of the commerce power as being a 
            limited power that cannot be allowed to displace all 
            exercise of state police powers.
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                    \32\ ``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).
                    \33\ 120 S. Ct. 1740 (2000). Once again, the 
            Justices were split 5 to 4, with Chief Justice Rehnquist's 
            opinion of the Court being joined by Justices O'Connor, 
            Scalia, Kennedy, and Thomas, and with Justices Souter, 
            Stevens, Ginsburg, and Breyer dissenting.
                    \34\ For an expansive interpretation in the area of 
            economic regulation, decided during the same Term as Lopez, 
            see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 
            (1995).
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                    In Morrison the Court applied Lopez principles to 
            invalidate a provision of the Violence Against Women Act 
            (VAWA) that created a federal cause of action for victims of 
            gender-motivated violence. Gender-motivated crimes of 
            violence ``are not, in any sense of the phrase, economic 
            activity,'' \35\ the Court explained, and there was 
            allegedly no precedent for upholding commerce-power 
            regulation of intrastate activity that was not economic in 
            nature. The provision, like the invalidated provision of the 
            Gun-Free School Zones Act, contained no jurisdictional 
            element tying the regulated violence to interstate commerce. 
            Unlike the Gun-Free School Zones Act, the VAWA did contain 
            ``numerous'' congressional findings about the serious 
            effects of gender-motivated crimes,\36\ but the Court 
            rejected reliance on these findings. ``The existence of 
            congressional findings is not sufficient, by itself, to 
            sustain the constitutionality of Commerce Clause 
            legislation. . . . [The issue of constitutionality] is 
            ultimately a judicial rather than a legislative question, 
            and can be settled finally only by this Court.'' \37\ The 
            problem with the VAWA findings was that they ``relied 
            heavily'' on the reasoning rejected in Lopez--the ``but-for 
            causal chain from the initial occurrence of crime . . . to 
            every attenuated effect upon interstate commerce.'' As the 
            Court had explained in Lopez, acceptance of this reasoning 
            would eliminate the distinction between what is truly 
            national and what is truly local, and would allow Congress 
            to regulate virtually any activity, and basically any 
            crime.\38\ Accordingly, the Court ``reject[ed] the argument 
            that Congress may regulate noneconomic, violent criminal 
            conduct based solely on that conduct's aggregate effect on 
            interstate commerce.'' Resurrecting the dual federalism 
            dichotomy, the Court could find ``no better example of the 
            police power, which the Founders denied the National 
            Government and reposed in the States, than the suppression 
            of violent crime and vindication of its victims.'' \39\
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                    \35\ 120 S. Ct. at 1751.
                    \36\ Dissenting Justice Souter pointed to a 
            ``mountain of data'' assembled by Congress to show the 
            effects of domestic violence on interstate commerce. 120 S. 
            Ct. at 1760-63. The Court has evidenced a similar 
            willingness to look behind congressional findings purporting 
            to justify exercise of enforcement power under section 5 of 
            the Fourteenth Amendment. See discussion under 
            ``enforcement,'' infra. In Morrison itself, the Court 
            determined that congressional findings were insufficient to 
            justify the VAWA as an exercise of Fourteenth Amendment 
            power. 120 S. Ct. at 1755.
                    \37\ 120 S. Ct. at 1752.
                    \38\ 120 S. Ct. at 1752-53. Applying the principle 
            of constitutional doubt, the Court in Jones v. United 
            States, 120 S. Ct. 1904 (2000), interpreted the federal 
            arson statute as inapplicable to the arson of a private, 
            owner-occupied residence. Were the statute interpreted to 
            apply to such residences, the Court noted, ``hardly a 
            building in the land would fall outside [its] domain,'' and 
            the statute's validity under Lopez would be squarely raised. 
            120 S. Ct. at 1911.
                    \39\ 120 S. Ct. at 1754.
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THE COMMERCE CLAUSE AS A RESTRAINT ON STATE POWERS
Doctrinal Background
[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). Justice Thomas has written an extensive opinion 
            rejecting both the historical and jurisprudential basis of 
            the dormant Commerce Clause and expressing a preference for 
            reliance on the Imports-Exports Clause. Camps Newfound/
            Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609 (1997) 
            (dissenting; joined by Justice Scalia entirely and by Chief 
            Justice Rehnquist as to the Commerce Clause but not the 
            Imports-Exports Clause).
State Taxation and Regulation: The Old Law
--Taxation
[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).
--Regulation
[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).
State Taxation and Regulation: The Modern Law
--Taxation
[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. 231, add to n.952:]
                Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S. 
            Ct. 1022 (2000) (interest deduction not properly apportioned 
            between unitary and non-unitary business).
[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 not 
            apportioned to reflect the intrastate travel and the 
            interstate travel.\40\ The tax in this case was different 
            from the tax upheld in Central Greyhound, the Court held. 
            The previous tax constituted a levy on gross receipts, 
            payable by the seller, whereas the present tax was a sales 
            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.\41\
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                    \40\ 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.
                    \41\ 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.\42\
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                    \42\ Fulton Corp. v. Faulkner, 516 U.S. 325 (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 333-44. 
            See also South Central Bell Tel. Co. v. Alabama, 526 U.S. 
            160 (1999) (tax not justified as compensatory).
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[P. 232, add to n.961:]
                And see Oregon Waste Systems, Inc. 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. 233, add to n.965:]
                Compare Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) 
            (state intangibles tax on a fraction of the value of 
            corporate stock owned by in-state residents inversely 
            proportional to the corporation's exposure to the state 
            income tax violated dormant Commerce Clause), with General 
            Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state imposition 
            of sales and use tax on all sales of natural gas except 
            sales by regulated public utilities, all of which were in-
            state companies, but covering all other sellers that were 
            out-of-state companies did not violate dormant Commerce 
            Clause because regulated and unregulated companies were not 
            similarly situated).
[P. 233, add to text following n.965:]

                    Expanding, although neither unexpectedly nor 
            exceptionally, its dormant commerce jurisprudence, the Court 
            in Camps Newfound/Owatonna, Inc. v. Town of Harrison,\43\ 
            applied its nondiscrimination element of the doctrine to 
            invalidate the State's charitable property tax exemption 
            statute, which applied to nonprofit firms performing 
            benevolent and charitable functions, but which excluded 
            entities serving primarily non-state residents. The claimant 
            here operated a church camp for children, most of whom 
            resided out-of-state. The discriminatory tax would easily 
            have fallen had it been applied to profit-making firms, and 
            the Court saw no reason to make an exception for nonprofits. 
            The tax scheme was designed to encourage entities to care 
            for local populations and to discourage attention to out-of-
            state individuals and groups. ``For purposes of Commerce 
            Clause analysis, any categorical distinction between the 
            activities of profit-making enterprises and not-for-profit 
            entities is therefore wholly illusory. Entities in both 
            categories are major participants in interstate markets. 
            And, although the summer camp involved in this case may have 
            a relatively insignificant impact on the commerce of the 
            entire Nation, the interstate commercial activities of 
            nonprofit entities as a class are unquestionably 
            significant.'' \44\
---------------------------------------------------------------------------

                    \43\ 520 U.S. 564 (1997). The decision was a 5 to 4 
            one with a strong dissent by Justice Scalia, id. at 595, and 
            a philosophical departure by Justice Thomas. Id. at 609.
                    \44\ Id. at 586.
---------------------------------------------------------------------------
[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.
--Regulation
[P. 236, add to text following n.980:]

                    Further extending the limitation of the clause on 
            waste disposal,\45\ 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.\46\ 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 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.
---------------------------------------------------------------------------

                    \45\ See also Oregon Waste Systems, Inc. v. 
            Department of Envtl. Quality, 511 U.S. 93 (1994) 
            (discriminatory tax).
                    \46\ C & A Carbone, Inc. v. Town of Clarkstown, 511 
            U.S. 383 (1994).
---------------------------------------------------------------------------

                    The Court analogized the constraint as a form of 
            economic protectionism, which bars out-of-state processors 
            from the business of treating the locality's 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.\47\
---------------------------------------------------------------------------

                    \47\ 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).
---------------------------------------------------------------------------
Foreign Commerce and State Powers
[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 Corporation, the Court in 
            Barclays Bank v. Franchise Tax Board of California,\48\ 
            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, perhaps 
            intended, is that foreign corporations have less protection 
            under the negative Commerce Clause.\49\
---------------------------------------------------------------------------

                    \48\ 512 U.S. 298 (1994).
                    \49\ The Supreme Court, Leading Cases, 1993 Term, 
            108 Harv. L. Rev. 139, 139-49 (1993).
---------------------------------------------------------------------------
CONCURRENT FEDERAL AND STATE JURISDICTION
The General Issue: Preemption
--The Standards Applied
[P. 247, add to n.1026, immediately preceding City of New 
    York v. FCC:]
                Smiley v. Citibank, 517 U.S. 735 (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); De Buono v. NYSA-ILA Med. and 
            Clinical Servs. Fund, 520 U.S. 806 (1997); California Div. 
            of Labor Stds. Enforcement v. Dillingham Constr., Inc., 519 
            U.S. 316 (1997); Boggs v. Boggs, 520 U.S. 833 (1997) 
            (decided not on the basis of the express preemption language 
            but instead by implied preemption analysis).
[P. 249, add to text following n.1035:]

                    Little clarification of the confusing Cipollone 
            decision and opinions resulted in the cases following, 
            although it does seem evident that the attempted distinction 
            limiting courts to the particular language of preemption 
            when Congress has spoken has not prevailed. At issue in 
            Medtronic, Inc. v. Lohr,\50\ was the Medical Device 
            Amendments (MDA) of 1976, which prohibited 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.\51\ 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'' to a device previously on the 
            market, a situation of some import to at least some of the 
            Justices.
---------------------------------------------------------------------------

                    \50\ 518 U.S. 470 (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); Norfolk So. Ry. v. Shanklin, 120 
            S. Ct. 1467 (2000) (applying Easterwood).
                    \51\ 21 U.S.C. Sec. 350k(a).
---------------------------------------------------------------------------

                    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.\52\
---------------------------------------------------------------------------

                    \52\ The dissent, by Justice O'Connor and three 
            others, would have held preempted the latter claims, 518 
            U.S. at 509, whereas Justice Breyer thought that common-law 
            claims would sometimes be preempted, but not here. Id. at 
            503 (concurring).
---------------------------------------------------------------------------

                    Following Cipollone, the Court observed that while 
            it ``need not go beyond'' the statutory preemption language, 
            it did need to ``identify the domain expressly pre-empted'' 
            by the language, so that ``our interpretation of that 
            language does not occur in a contextual vacuum.'' That is, 
            it must be informed by two presumptions about the nature of 
            preemption: the presumption that Congress does not 
            cavalierly preempt common-law causes of action and the 
            principle that it is Congress' purpose that is the ultimate 
            touchstone.\53\
---------------------------------------------------------------------------

                    \53\ 518 U.S. at 484-85. See also id. at 508 
            (Justice Breyer concurring); Freightliner Corp. v. Myrick, 
            514 U.S. 280, 288-89 (1995); Barnett Bank v. Nelson, 517 
            U.S. 25, 31 (1996); California Div. of Labor Stds. 
            Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 334 
            (1997) (Justice Scalia concurring); Boggs v. Boggs, 520 U.S. 
            833 (1997) (using ``stands as an obstacle'' preemption 
            analysis in an ERISA case, having express preemptive 
            language, but declining to decide when implied preemption 
            may be used despite express language), and id. at 854 
            (Justice Breyer dissenting) (analyzing the preemption issue 
            under both express and implied standards).
---------------------------------------------------------------------------

                    The Court continued to struggle with application of 
            express preemption language to state common-law tort actions 
            in Geier v. American Honda Motor Co.\54\ The National 
            Traffic and Motor Vehicle Safety Act contained both a 
            preemption clause, prohibiting states from applying ``any 
            safety standard'' different from an applicable federal 
            standard, and a ``saving clause,'' providing that 
            ``compliance with'' a federal safety standard ``does not 
            exempt any person from any liability under common law.'' The 
            Court determined that the express preemption clause was 
            inapplicable. However, despite the saving clause, the Court 
            ruled that a common law tort action seeking damages for 
            failure to equip a car with an airbag was preempted because 
            its application would frustrate the purpose of a Federal 
            Motor Vehicle Safety Standard that had allowed manufacturers 
            to choose from among a variety of ``passive restraint'' 
            systems for the applicable model year.\55\ The Court's 
            holding makes clear, contrary to the suggestion in 
            Cipollone, that existence of express preemption language 
            does not foreclose operation of conflict (in this case 
            ``frustration of purpose'') preemption.
---------------------------------------------------------------------------

                    \54\ 120 S. Ct. 1913 (2000).
                    \55\ The Court focused on the word ``exempt'' to 
            give the saving clause a narrow application--as ``simply 
            bar[ring] a special kind of defense, . . . that compliance 
            with a federal safety standard automatically exempts a 
            defendant from state law, whether the Federal Government 
            meant that standard to be an absolute requirement or only a 
            minimum one.'' 120 S. Ct. at 1919.
---------------------------------------------------------------------------
[P. 251, add to n.1046 after Ray v. Atlantic Richfield 
    citation:]
                United States v. Locke, 120 S. Ct. 1135 (2000) (applying 
            Ray).
[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 pre-dispute arbitration agreements that were 
            not entered into in contemplation of substantial interstate 
            activity); Doctor's Associates, Inc. v. Casarotto, 517 U.S. 
            681 (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 v. Nelson, 517 U.S. 25 (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. 253, add to text following n.1057:]

                    In Boggs v. Boggs,\56\ the Court, 5 to 4, applied 
            the ``stands as an obstacle'' test for conflict even though 
            the statute (ERISA) contains an express preemption section. 
            The dispute arose in a community-property State, in which 
            heirs of a deceased wife claimed property that involved 
            pension-benefit assets that was left to them by testamentary 
            disposition, as against a surviving second wife. Two ERISA 
            provisions operated to prevent the descent of the property 
            to the heirs, but under community-property rules the 
            property could have been left to the heirs by their deceased 
            mother. The Court did not pause to analyze whether the ERISA 
            preemption provision operated to preclude the descent of the 
            property, either because state law ``relate[d] to'' a 
            covered pension plan or because state law had an 
            impermissible ``connection with'' a plan, but it instead 
            decided that the operation of the state law insofar as it 
            conflicted with the purposes Congress had intended to 
            achieve by ERISA and insofar as it ran into the two noted 
            provisions of ERISA stood as an obstacle to the effectuation 
            of the ERISA law. ``We can begin, and in this case end, the 
            analysis by simply asking if state law conflicts with the 
            provisions of ERISA or operates to frustrate its objects. We 
            hold that there is a conflict, which suffices to resolve the 
            case. We need not inquire whether the statutory phrase 
            `relate to' provides further and additional support for the 
            pre-emption claim. Nor need we consider the applicability of 
            field pre-emption.'' \57\
---------------------------------------------------------------------------

                    \56\ 520 U.S. 833 (1997).
                    \57\ Id. at 841. The dissent, id. at 854 (Justice 
            Breyer), agreed that conflict analysis was appropriate, but 
            he did not find that the state law achieved any result that 
            ERISA required.
---------------------------------------------------------------------------

                    Similarly, the Court found it unnecessary to 
            consider field preemption due to its holding that a 
            Massachusetts law barring state agencies from purchasing 
            goods or services from companies doing business with Burma 
            imposed obstacles to the accomplishment of Congress' full 
            objectives under the federal Burma sanctions law.\58\ The 
            state law was said to undermine the federal law in several 
            respects that could have implicated field preemption--by 
            limiting the President's effective discretion to control 
            sanctions, and by frustrating the President's ability to 
            engage in effective diplomacy in developing a comprehensive 
            multilateral strategy--but the Court ``decline[d] to speak 
            to field preemption as a separate issue.'' \59\
---------------------------------------------------------------------------

                    \58\ Crosby v. National Foreign Trade Council, 120 
            S. Ct. 2288 (2000).
                    \59\ 120 S. Ct. at 2295 n.8.
---------------------------------------------------------------------------
--Federal Versus State Labor Laws
[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).
COMMERCE WITH INDIAN TRIBES
[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, 515 U.S. 
            450 (1995).
[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
The Power of Congress to Exclude 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).
Deportation
[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.
[P. 281, add to text at end of section:]

                    An alien unlawfully in the country ``has no 
            constitutional right to assert selective enforcement as a 
            defense against his deportation.'' \60\
---------------------------------------------------------------------------

                    \60\ Reno v. American-Arab Anti-Discrimination 
            Comm., 525 U.S. 471, 488 (1999).
---------------------------------------------------------------------------
COPYRIGHTS AND PATENTS
Procedure in Issuing Patents
[P. 297, add to n.1353:]
                In Markman v. Westview Instruments, Inc., 517 U.S. 348 
            (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.
Nature and Scope of the Right Secured
[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 POWER TO RAISE AND MAINTAIN ARMED FORCES
Trial and Punishment of Offenses: Servicemen, Civilian 
    Employees, and Dependents
[P. 316, add to n.1465:]
                See Loving v. United States, 517 U.S. 748 (1996) (in 
            context of the death penalty under the UCMJ).
POWERS DENIED TO CONGRESS
Taxes on Exports
[P. 356, add to text following n.1772:]

                    Continuing its refusal to modify its Export Clause 
            jurisprudence,\61\ the Court held unconstitutional the 
            Harbor Maintenance Tax (HMT) under the Export Clause insofar 
            as the tax was applied to goods loaded at United States 
            ports for export. The HMT required shippers to pay a uniform 
            charge on commercial cargo shipped through the Nation's 
            ports. The clause, said the Court, ``categorically bars 
            Congress from imposing any tax on exports.'' \62\ However, 
            the clause does not interdict a ``user fee,'' that is a 
            charge that lacks the attributes of a generally applicable 
            tax or duty and is designed to compensate for government 
            supplied services, facilities, or benefits, and it was that 
            defense to which the Government repaired once it failed to 
            obtain a modification of the rules under the clause. But the 
            HMT bore the indicia of a tax. It was titled as a tax, 
            described as a tax in the law, and codified in the Internal 
            Revenue Code. Aside from naming, however, courts must look 
            to how things operate, and the HMT did not qualify as a user 
            fee. It did not represent compensation for services 
            rendered. The value of export cargo did not correspond 
            reliably with the federal harbor services used or usable by 
            the exporter. Instead, the extent and manner of port use 
            depended on such factors as size and tonnage of a vessel and 
            the length of time it spent in port.\63\ The HMT was thus a 
            tax, and therefore invalid.
---------------------------------------------------------------------------

                    \61\ See United States v. IBM Corp., 517 U.S. 843, 
            850-61 (1996).
                    \62\ United States v. United States Shoe Corp., 523 
            U.S. 360, 363 (1998).
                    \63\ Id. at 367-69.
---------------------------------------------------------------------------
[P. 356, add to text following n.1775:]

                    In United States v. IBM Corporation,\64\ 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 \65\ and 
            with dormant-commerce-clause doctrine. In that 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.
---------------------------------------------------------------------------

                    \64\ 517 U.S. 843 (1996).
                    \65\ Article I, Sec. 10, cl. 2, applying to the 
            States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
                In United States v. IBM Corp., 517 U.S. 843 (1996), the 
            Court adhered to Thames & Mersey, 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 equating of a tax on the insurance of 
            exported goods with 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 854-55. The 
            dissenters argued that the issue had been presented and 
            should be decided by overruling the earlier case. Id. at 863 
            (Justices Kennedy and Ginsburg dissenting).
POWERS DENIED TO THE STATES
Ex Post Facto Laws
--Scope of the Provision
[P. 362, add to n.1815:]
                In Eastern Enterprises v. Apfel, 524 U.S. 498, 538 
            (1998) (concurring), Justice Thomas indicated a willingness 
            to reconsider Calder to determine whether the clause should 
            apply to civil legislation.
--Changes in Punishment
[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 invalidated 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. Accord, Garner v. Jones, 120 S. Ct. 1362 (2000) 
            (evidence insufficient to determine whether change in 
            frequency of parole hearings significantly increases the 
            likelihood of prolonging incarceration). But see Lynce v. 
            Mathis, 519 U.S. 433 (1997) (cancellation of release credits 
            already earned and used, resulting in reincarceration, 
            violates the Clause).
--Changes in Procedure
[P. 366, add to end of section:]

                    Changes in evidentiary rules that allow conviction 
            on less evidence than was required at the time the crime was 
            committed can also run afoul of the Ex Post Facto Clause. 
            This principle was applied in the Court's invalidation of 
            retroactive application of a Texas law that eliminated the 
            requirement that the testimony of a sexual assault victim 
            age 14 or older must be corroborated by two other witnesses, 
            and allowed conviction on the victim's testimony alone.\66\
---------------------------------------------------------------------------

                    \66\ Carmell v. Texas, 120 S. Ct. 1620 (2000).
---------------------------------------------------------------------------
Duties on Exports or Imports
--Scope
[P. 399, add to n.2000:]
                Justice Thomas has called recently for reconsideration 
            of Woodruff and the possible application of the clause to 
            interstate imports and exports. Camps Newfound/Owatonna, 
            Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997) 
            (dissenting).
--Property Taxes
[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).




                               ARTICLE II

NATURE AND SCOPE OF PRESIDENTIAL POWER
Executive Power: Theory of the Presidential Office
--The Curtiss-Wright Case
[P. 420, add to n.34:]
                In Loving v. United States, 517 U.S. 748 (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 the President's 
            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 771-74.
Executive Power: Separation-of-Powers Judicial Protection
[P. 422, add to text following n.45:]

                    Significant change in the position of the Executive 
            Branch 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 Department's earlier 
            contention, 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).
---------------------------------------------------------------------------
[P. 425, add to text following n.61:]

                    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.'' 108 Harv. L. Rev. at 305-06 
            (footnote citations omitted).
---------------------------------------------------------------------------
THE EXECUTIVE ESTABLISHMENT
Appointments and Congressional Regulation of Offices
[P. 514, add to text following n.468:]

                    The Court, in Edmond v. United States,\6\ reviewed 
            its pronouncements regarding the definition of ``inferior 
            officer'' and, disregarding some implications of its prior 
            decisions, seemingly settled, unanimously, on a pragmatic 
            characterization. Thus, the importance of the 
            responsibilities assigned an officer, the fact that duties 
            were limited, that jurisdiction was narrow, and that tenure 
            was limited, are only factors but are not definitive.\7\ 
            ``Generally speaking, the term `inferior officer' connotes a 
            relationship with some higher ranking officer or officers 
            below the President: Whether one is an `inferior' officer 
            depends on whether he has a superior. It is not enough that 
            other officers may be identified who formally maintain a 
            higher rank, or possess responsibilities of a greater 
            magnitude. If that were the intention, the Constitution 
            might have used the phrase `lesser officer.' Rather, in the 
            context of a Clause designed to preserve political 
            accountability relative to important Government assignments, 
            we think it evident that `inferior officers' are officers 
            whose work is directed and supervised at some level by 
            others who were appointed by Presidential nomination with 
            the advice and consent of the Senate.'' \8\
---------------------------------------------------------------------------

                    \6\ 520 U.S. 651 (1997).
                    \7\ Id. at 661-62.
                    \8\ Id. at 662-63. The case concerned whether the 
            Secretary of Transportation, a presidential appointee with 
            the advice and consent of the Senate, could appoint judges 
            of the Coast Guard Court of Military Appeals; necessarily, 
            the judges had to be ``inferior'' officers. In related 
            cases, the Court held that 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 designation 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 by the same method 
            was impermissible; they had either to be appointed by an 
            officer who could exercise appointment-clause authority or 
            by the President, and their actions were not salvageable 
            under the de facto officer doctrine. Ryder v. United States, 
            515 U.S. 177 (1995).
---------------------------------------------------------------------------
[P. 516, add new footnote to end of first sentence of first 
    full paragraph:]
                As the text suggested, Freytag seemed to be a tentative 
            decision, and Edmond v. United States, 520 U.S. 651 (1997), 
            a unanimous decision written by Justice Scalia, whose 
            concurring opinion in Freytag challenged the Court's 
            analysis, may easily be read as retreating considerably from 
            it.
--Financial Disclosure and Limitations
[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 text following n.738:]

                    Unofficial Conduct.--In Clinton v. Jones,\9\ the 
            Court, in a case of first impression, held that the 
            President did not have qualified immunity from suit for 
            conduct alleged to have taken place prior to his election to 
            the Presidency, which would entitle him to delay of both the 
            trial and discovery. The Court held that its precedents 
            affording the President immunity from suit for his official 
            conduct--primarily on the basis that he should be enabled to 
            perform his duties effectively without fear that a 
            particular decision might give rise to personal liability--
            were inapplicable in this kind of case. Moreover, the 
            separation-of-powers doctrine did not require a stay of all 
            private actions against the President. Separation of powers 
            is preserved by guarding against the encroachment or 
            aggrandizement of one of the coequal branches of the 
            Government at the expense of another. However, a federal 
            trial court tending to a civil suit in which the President 
            is a party performs only its judicial function, not a 
            function of another branch. No decision by a trial court 
            could curtail the scope of the President's powers. The trial 
            court, the Supreme Court observed, had sufficient powers to 
            accommodate the President's schedule and his workload, so as 
            not to impede the President's performance of his duties. 
            Finally, the Court stated its belief that allowing such 
            suits to proceed would not generate a large volume of 
            politically motivated harassing and frivolous litigation. 
            Congress has the power, the Court advised, if it should 
            think necessary to legislate, to afford the President 
            protection.\10\
---------------------------------------------------------------------------

                    \9\ 520 U.S. 681 (1997).
                    \10\ The Court observed at one point that it doubted 
            that defending the suit would much preoccupy the President, 
            that his time and energy would not be much taken up by it. 
            ``If the past is any indicator, it seems unlikely that a 
            deluge of such litigation will ever engulf the Presidency.'' 
            520 U.S. at 702.
---------------------------------------------------------------------------
--The President's Subordinates
[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, 515 U.S. 417 (1995), held that the Attorney 
            General's certification is subject to judicial review.
IMPEACHMENT
Impeachable Offenses
--Judicial Review of Impeachments
[P. 591, add to text following n.784:]

                    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.'' \11\ Specifically, the 
            Court 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.
---------------------------------------------------------------------------

                    \11\ 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.




                               ARTICLE III

JUDICIAL POWER
Characteristics and Attributes of 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\ On the other hand, the 
            Court ruled in Miller v. French \3\ that the Prison 
            Litigation Reform Act's automatic stay of ongoing 
            injunctions remedying violations of prisoners' rights did 
            not amount to an unconstitutional legislative revision of a 
            final judgment. Rather, the automatic stay merely alters 
            ``the prospective effect'' of injunctions, and it is well 
            established that such prospective relief ``remains subject 
            to alteration due to changes in the underlying law.'' \4\
---------------------------------------------------------------------------

                    \2\ 514 U.S. at 227 (emphasis by Court).
                    \3\ 120 S. Ct. 2246 (2000).
                    \4\ 120 S. Ct. at 2257.
---------------------------------------------------------------------------
Finality of Judgment as an Attribute of Judicial Power
[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).
ANCILLARY POWERS OF FEDERAL COURTS
The Contempt Power
--Categories of Contempt
[P. 623, add to text following n.154:]

                    In International Union, UMW v. Bagwell,\5\ 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.\6\ 
            Much prior doctrine remains, 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.
---------------------------------------------------------------------------

                    \5\ 512 U.S. 821 (1994).
                    \6\ 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.
---------------------------------------------------------------------------
--Due Process Limitations on Contempt Power: Right to Jury 
    Trial
[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.
--Contempt by Disobedience of Orders
[P. 634, add to n.206:]
                See also International Union, UMW v. Bagwell, 512 U.S. 
            821 (1994).
Power to Issue Writs: The Act of 1789
--Habeas Corpus: Congressional and Judicial Control
[P. 639, add to text following n.238:]

                    In Felker v. Turpin,\7\ the Court again passed up 
            the opportunity to delineate Congress' permissive authority 
            over habeas, finding that none of the provisions of the 
            Antiterrorism and Effective Death Penalty Act \8\ raised 
            questions of constitutional import.
---------------------------------------------------------------------------

                    \7\ 518 U.S. 651 (1996).
                    \8\ Pub. L. No. 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.
---------------------------------------------------------------------------
Congressional Limitation of the Injunctive Power
[P. 642, add to text following n.264:]

                    Perhaps pressing its powers further than prior 
            legislation, Congress enacted the Prison Litigation Reform 
            Act of 1996.\9\ 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. No 
            prospective relief is to last longer than two years if any 
            party or intervenor so moves. Finally, a previously issued 
            decree that does not conform to the new standards imposed by 
            the Act is subject to termination upon the motion of the 
            defendant or an intervenor. After a short period (30 or 60 
            days, depending on whether there is ``good cause'' for a 30-
            day extension), such a motion operates as an automatic stay 
            of the prior decree pending the court's decision on the 
            merits. The Court upheld the termination and automatic stay 
            provisions in Miller v. French,\10\ rejecting the contention 
            that the automatic stay provision offends separation of 
            powers principles by legislative revision of a final 
            judgment. Rather, Congress merely established new standards 
            for the enforcement of prospective relief, and the automatic 
            stay provision ``helps to implement the change in the law.'' 
            \11\
---------------------------------------------------------------------------

                    \9\ The statute was part of an Omnibus 
            Appropriations Act signed by the President on April 26, 
            1996. Pub. L. 104-134, Sec. Sec. 801-10, 110 Stat. 1321-66-
            77, amending 18 U.S.C. Sec. 3626.
                    \10\ 120 S. Ct. 2246 (2000).
                    \11\ 120 S. Ct. at 2259.
---------------------------------------------------------------------------
JUDICIAL POWER AND JURISDICTION--CASES AND CONTROVERSIES
Substantial Interest: Standing
--Taxpayer Suits
[P. 657, add to n.335:]
                Richardson's generalized grievance constriction does not 
            apply when Congress confers standing on litigants. FEC v. 
            Akins, 524 U.S. 11 (1998). When Congress confers standing on 
            ``any person aggrieved'' by the denial of information 
            required to be furnished them, the statutory entitlement is 
            sufficient, and it matters not that most people will be 
            entitled and will thus suffer a ``generalized grievance.'' 
            Id. at 21-25.
[P. 657, add to n.336:]
                The Court's present position on Flast is set out 
            severely in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), in 
            which the Court largely plays down the ``serious and 
            adversarial treatment'' prong of standing and strongly 
            reasserts the separation-of-powers value of keeping courts 
            within traditional bounds. The footnote is a response to 
            Justice Souter's separate opinion utilizing Flast, id., 398-
            99, for a distinctive point.
--Constitutional Standards: Injury in Fact, Causation, and 
    Redressability
[P. 658, insert the following after the word ``Now'' in 
    sentence following n.345:]

                    political,\12\
---------------------------------------------------------------------------

                    \12\ Department of Commerce v. United States House 
            of Representatives, 525 U.S. 316 (1999).
---------------------------------------------------------------------------
[P. 659, add to text following n.347:]
                In FEC v. Akins,\13\ the Court found ``injury-in-fact'' 
            present when plaintiff voters alleged that the Federal 
            Election Commission had denied them information, to which 
            they alleged an entitlement, respecting an organization that 
            might or might not be a political action committee. Congress 
            had afforded persons access to the Commission and had 
            authorized ``any person aggrieved'' by the actions of the 
            FEC to sue to challenge the action. That the injury was 
            widely shared did not make the claimed injury a 
            ``generalized grievance,'' the Court held, but rather in 
            this case, as in others, it was a concrete harm to each 
            member of the class. The case is a principal example of the 
            ability of Congress to confer standing and to remove 
            prudential constraints on judicial review.
---------------------------------------------------------------------------
                    \13\ 524 U.S. 11 (1998).
---------------------------------------------------------------------------
[P. 659, add to n.348 at end of string citation:]
                Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. 
            Ct. 693 (2000).
[P. 659, add to text following n.348:]

                    Even citizens who bring qui tam actions under the 
            False Claims Act, an action that entitles them to a 
            percentage of any civil penalty assessed for violation, have 
            been held to have standing, on the theory that the 
            government has assigned a portion of its damages claim to 
            the plaintiff, and the assignee of a claim has standing to 
            assert the injury in fact suffered by the assignor.\14\
---------------------------------------------------------------------------

                    \14\ Vermont Agency of Nat. Res. v. United States ex 
            rel. Stevens, 120 S. Ct. 1858 (2000). The Court confirmed 
            its conclusion by reference to the long tradition of qui tam 
            actions, since the Constitution's restriction of judicial 
            power to ``cases'' and ``controversies'' has been 
            interpreted to mean ``cases and controversies of the sort 
            traditionally amenable to, and resolved by, the judicial 
            process.'' Id. at 1863.
---------------------------------------------------------------------------
[P. 660, add to n.352:]
                In Steel Co. v. Citizens for a Better Environment, 523 
            U.S. 83 (1998), the Court denied standing because of the 
            absence of redressability. An environmental group sued the 
            company for failing to file timely reports required by 
            statute; by the time the complaint was filed, the company 
            was in full compliance. Acknowledging that the entity had 
            suffered injury in fact, the Court found that no judicial 
            action would afford it a remedy.
[P. 661, add to text at end of section:]

                    Redressability can be present in an environmental 
            citizen suit even when the remedy is civil penalties payable 
            to the government. The civil penalties, the Court explained, 
            ``carried with them a deterrent effect that made it likely, 
            as opposed to merely speculative, that the penalties would 
            redress [plaintiffs'] injuries by abating current violations 
            and preventing future ones.'' \15\
---------------------------------------------------------------------------

                    \15\ Friends of the Earth v. Laidlaw Envtl. Servs., 
            120 S. Ct. 693, 707 (2000).
---------------------------------------------------------------------------
--Prudential Standing Rules
[P. 661, add to text following n.360:]

                    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.'' \16\ 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 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.'' \17\ The association, therefore, established 
            standing by alleging that its members were able and ready to 
            bid on contracts but that a discriminatory policy prevented 
            them from doing so on an equal basis.\18\
---------------------------------------------------------------------------

                    \16\ Northeastern Fla. Ch., Assoc. Gen. Contractors 
            v. City of Jacksonville, 508 U.S. 656 (1993). 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).
                    \17\ 508 U.S. at 666. 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).
                    \18\ 508 U.S. at 666. But see, in the context of 
            ripeness, Reno v. Catholic Social Servs., 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.
---------------------------------------------------------------------------
[Pp. 661-62, add to n.360:]
                Justice Scalia, who wrote the opinion in Lujan, 
            reiterated the separation-of-powers objection to 
            congressional conferral of standing in FEC v. Akins, 524 
            U.S. 11, 29, 36 (1998) (alleged infringement of President's 
            ``take care'' obligation), but this time in dissent; the 
            Court did not advert to this objection in finding that 
            Congress had provided for standing based on denial of 
            information to which the plaintiffs, as voters, were 
            entitled.
[P. 662, add to n.362:]
                See also Bennett v. Spear, 520 U.S. 154 (1997).
--Standing to Assert the Constitutional Rights of Others
[P. 663, add to n.370:]
                The Court has expanded the rights of non-minority 
            defendants to challenge the exclusion of minorities from 
            petit and grand juries, both on the basis of the injury-in-
            fact to defendants and because the standards for being able 
            to assert the rights of third parties were met. Powers v. 
            Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 
            392 (1998).
--Standing of Members of Congress
[P. 668, add new paragraph at end of section:]

                    Member or legislator standing has been severely 
            curtailed, although not quite abolished, in Raines v. 
            Byrd.\19\ Several Members of Congress, who had voted against 
            passage of the Line Item Veto Act, sued in their official 
            capacities as Members of Congress to invalidate the law, 
            alleging standing based on the theory that the statute 
            adversely affected their constitutionally prescribed 
            lawmaking power.\20\ Emphasizing its use of standing 
            doctrine to maintain separation-of-powers principles, the 
            Court adhered to its holdings that, in order to possess the 
            requisite standing, a person must establish that he has a 
            ``personal stake'' in the dispute and that the alleged 
            injury suffered is particularized as to him.\21\ Neither 
            requirement, the Court held, was met by these legislators. 
            First, the Members did not suffer a particularized loss that 
            distinguished them from their colleagues or from Congress as 
            an entity. Second, the Members did not claim that they had 
            been deprived of anything to which they were personally 
            entitled. ``[A]ppellees' claim of standing is based on loss 
            of political power, not loss of any private right, which 
            would make the injury more concrete . . . . If one of the 
            Members were to retire tomorrow, he would no longer have a 
            claim; the claim would be possessed by his successor 
            instead. The claimed injury thus runs (in a sense) with the 
            Member's seat, a seat which the Member holds . . . as 
            trustee for his constituents, not as a prerogative of 
            personal power.'' \22\
---------------------------------------------------------------------------

                    \19\ 521 U.S. 811 (1997).
                    \20\ The Act itself provided that ``[a]ny Member of 
            Congress or any individual adversely affected'' could sue to 
            challenge the law. 2 U.S.C. Sec. 692(a)(1). After failure of 
            this litigation, the Court in the following Term, on suits 
            brought by claimants adversely affected by the exercise of 
            the veto, held the statute unconstitutional. Clinton v. City 
            of New York, 524 U.S. 417 (1998).
                    \21\ 521 U.S. at 819.
                    \22\ 521 U.S. at 821.
---------------------------------------------------------------------------

                    So, there is no such thing as Member standing? Not 
            necessarily so, because the Court turned immediately to 
            preserving (at least a truncated version of) Coleman v. 
            Miller,\23\ in which the Court had found that 20 of the 40 
            members of a state legislature had standing to sue to 
            challenge the loss of the effectiveness of their votes as a 
            result of a tie-breaker by the lieutenant governor. Although 
            there are several possible explanations for the result in 
            that case, the Court in Raines chose to fasten on a 
            particularly narrow point. ``[O]ur holding in Coleman stands 
            (at most, . . .) for the proposition that legislators whose 
            votes would have been sufficient to defeat (or enact) a 
            specific legislative Act have standing to sue if that 
            legislative action goes into effect (or does not go into 
            effect), on the ground that their votes have been completely 
            nullified.'' \24\ Because these Members could still pass or 
            reject appropriations bills, vote to repeal the Act, or 
            exempt any appropriations bill from presidential 
            cancellation, the Act did not nullify their votes and thus 
            give them standing.\25\
---------------------------------------------------------------------------

                    \23\ 307 U.S. 433 (1939).
                    \24\ 521 U.S. at 823.
                    \25\ 521 U.S. at 824-26.
---------------------------------------------------------------------------

                    It will not pass notice that the Court's two 
            holdings do not cohere. If legislators have standing only to 
            allege personal injuries suffered in their personal 
            capacities, how can they have standing to assert official-
            capacity injury in being totally deprived of the 
            effectiveness of their votes? A period of dispute in the 
            D.C. Circuit seems certain to follow.

--Standing to Challenge Nonconstitutional Governmental 
    Action
[P. 669, add to n.401:]
                See also National Credit Union Admin. v. First Nat'l 
            Bank & Trust Co., 522 U.S. 479 (1998), in which the Court 
            found that a bank had standing to challenge an agency ruling 
            expanding the role of employer credit unions to include 
            multi-employer credit unions, despite a statutory limit that 
            any such union could be of groups having a common bond of 
            occupation or association. The Court held that a plaintiff 
            did not have to show it was the congressional purpose to 
            protect its interests. It is sufficient if the interest 
            asserted is ``arguably within the zone of interests to be 
            protected . . . by the statute.'' Id. at 492 (internal 
            quotation marks and citation omitted). But the Court divided 
            5 to 4 in applying the test. And see Bennett v. Spear, 520 
            U.S. 154 (1997).
[P. 670, add to n.405:]
                But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that 
            ``citizen suit'' provision of Endangered Species Act is 
            directed at empowering suits to further environmental 
            concerns does not mean that suitor who alleges economic harm 
            from enforcement of Act lacks standing); FEC v. Akins, 524 
            U.S. 11 (1998) (expansion of standing based on denial of 
            access to information).
The Requirement of a Real Interest
--Declaratory Judgments
[P. 674, add to n.436:]
                See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
--Ripeness
[P. 676, add to n.449:]
                For recent examples of lack of ripeness, see Ohio 
            Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998); Texas v. 
            United States, 523 U.S. 296 (1998).
[P. 678, add to n.457:]
                In the context of ripeness to challenge 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 Servs., Inc., 
            509 U.S. 43 (1993); Lujan v. National Wildlife Fed'n., 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, add to n.463:]
                Consider the impact of Cardinal Chemical Co. v. Morton 
            Int'l, Inc., 508 U.S. 83 (1993).
[P. 680, add to n.466:]
                Following Aladdin's Castle, the Court in Northeastern 
            Fla. Ch., Assoc. 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).
[P. 680, add to n.467:]
                In Arizonans For Official English v. Arizona, 520 U.S. 
            43 (1997), a state employee attacking an English-only work 
            requirement had standing at the time she brought the suit, 
            but she resigned following a decision in the trial court, 
            thus mooting the case before it was taken to the appellate 
            court, which should not have acted to hear and decide it.
[P. 680, add to n.469:]
                But compare Spencer v. Kemna, 523 U.S. 1 (1998).
[P. 682, add to n.476 following Super Tire citation:]
                Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. 
            Ct. 693, 708-10 (2000).
--Retroactivity Versus Prospectivity
[P. 686, add to n.503:]
                For additional elaboration on ``new law,'' see O'Dell v. 
            Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 
            U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). 
            But compare Bousley v. Brooks, 523 U.S. 614 (1998).
[P. 687, add to text following n.509:]

                    Apparently, the Court now has resolved this dispute, 
            although the principal decision is a close 5 to 4 result. In 
            Harper v. Virginia Dep't of Taxation,\26\ 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.'' \27\ Four Justices continued to adhere to Chevron 
            Oil, however,\28\ so that with one Justice each retired from 
            the different sides one may not regard the issue as 
            definitively settled.\29\
---------------------------------------------------------------------------

                    \26\ 509 U.S. 86 (1993).
                    \27\ 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.
                    \28\ 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.
                    \29\ 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).
---------------------------------------------------------------------------
Political Questions
--The Doctrine Reappears
[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.\30\
---------------------------------------------------------------------------

                    \30\ 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
Limitations on the Exercise of Judicial Review
--Stare Decisis in Constitutional Law
[P. 712, add to n.639:]
                Recent discussions of and both applications of and 
            refusals to apply stare decisis may be found in Hohn v. 
            United States, 524 U.S. 236, 251-52 (1998), and id. at 1981-
            83 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 
            U.S. 3, 20-2 (1997); Agostini v. Felton, 521 U.S. 203, 235-
            36 (1997), and id. at 523-54 (Justice Souter dissenting); 
            United States v. IBM Corp., 517 U.S. 843, 854-56 (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 
            863 (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, 
            517 U.S. 44, 61-73 (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 76, 100. 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, 518 U.S. 604, 631 (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 626 (Court notes those issues not 
            raised or argued).
JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS
Cases Arising Under the Constitution, Laws, and Treaties of 
    the United States
--Pendent Jurisdiction
[P. 721, add to n.702:]
                See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 
            375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both 
            cases using the new vernacular of ``ancillary 
            jurisdiction'').
[P. 722, add to n.713:]
                In City of Chicago v. International College of Surgeons, 
            522 U.S. 156 (1998), the Court, despite the absence of 
            language making Sec. 1367 applicable, held that the statute 
            gave district courts jurisdiction over state-law claims in 
            cases originating in state court and then removed to federal 
            court.
Cases of Admiralty and Maritime Jurisdiction
--Admiralty and Maritime Cases
[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 giving rise to the incident had a 
            substantial relationship to traditional maritime activity.
--Admiralty and Federalism
[P. 743, add to n.842:]
                But, in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 
            (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.
Cases to Which the United States Is a Party
--Immunity of the United States From Suit
[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 Two or More States
--Cases of Which the Court has Declined Jurisdiction
[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.
Controversies Between Citizens of Different States
--The Law Applied in Diversity Cases
[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.\31\ 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 on 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,\32\ rather than what had been the 
            prevailing standard, in which the Court balanced state and 
            federal interests to determine which law to apply.\33\ 
            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.'' \34\ Additional 
            decisions will be required to determine which approach, if 
            either, prevails.
---------------------------------------------------------------------------

                    \31\ Gasperini v. Center for Humanities, Inc., 518 
            U.S. 415 (1996). The decision was 5 to 4, so that the 
            precedent may or may not be stable for future application.
                    \32\ E.g., Guaranty Trust Co. v. York, 326 U.S. 99 
            (1945).
                    \33\ E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356 
            U.S. 525 (1958).
                    \34\ 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
The Theory Reconsidered
[P. 788, add to n.1105:]
                A restrained reading of McCardle is strongly suggested 
            by Felker v. Turpin, 518 U.S. 651 (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. No. 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
Conflicts of Jurisdiction: Rules of Accommodation
--Abstention
[Pp. 798-99, add to n.1161:]
                But in Quackenbush v. Allstate Ins. Co., 517 U.S. 706 
            (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.
[P. 803, change heading to:]
Conflicts of Jurisdiction: Federal Court Interference with 
    State Courts
--Habeas Corpus: Scope of the Writ
[P. 816, add to n.1256:]
                See also O'Dell v. Netherland, 521 U.S. 151 (1997); 
            Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. 
            Netherland, 518 U.S. 152 (1996). But compare Bousley v. 
            Brooks, 523 U.S. 614 (1998).
[P. 818, add to n.1268:]
                In Bousley v. Brooks, 523 U.S. 614 (1998), a federal 
            post-conviction relief case, petitioner had pled guilty to a 
            federal firearms offense. Subsequently, the Supreme Court 
            interpreted more narrowly the elements of the offense than 
            had the trial court in Bousley's case. The Court held that 
            Bousley by his plea had defaulted, but that he might be able 
            to demonstrate ``actual innocence'' so as to excuse the 
            default if he could show on remand that it was more likely 
            than not that no reasonable juror would have convicted him 
            of the offense, properly defined.
[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,\35\ 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 
            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.\36\
---------------------------------------------------------------------------

                    \35\ 506 U.S. 390 (1993).
                    \36\ 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,\37\ 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.'' \38\ 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.'' \39\
---------------------------------------------------------------------------

                    \37\ 513 U.S. 298 (1995).
                    \38\ 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).
                    \39\ 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,\40\ 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 upheld in 
            Felker v. Turpin.\41\ 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[.]'' \42\
---------------------------------------------------------------------------

                    \40\ Pub. 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. For a narrowly 
            decided case weakening somewhat the congressional provisions 
            on ``gate-keeping,'' see Hohn v. United States, 524 U.S. 236 
            (1998).
                    \41\ 518 U.S. 651 (1996).
                    \42\ The amended 28 U.S.C. Sec. 2254(d) (emphasis 
            supplied). On the constitutionality and application of this 
            provision, see the various opinions in Lindh v. Murphy, 96 
            F.3d 856 (7th Cir. 1996) (en banc), rev'd on other grounds, 
            521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th 
            Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v. 
            Washington, 106 F.3d 742 (7th Cir. 1997); O'Brien v. Dubois, 
            145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 
            (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999).




                               ARTICLE IV

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES
All Privileges and Immunities of Citizens in the Several 
    States
[P. 874, add to n.194:]
                For the application of this test, see Lunding v. New 
            York Tax Appeals Tribunal, 522 U.S. 287, 296-99 (1998).
Taxation
[P. 877, in text following n.215, add:]

                    The Court returned to the privileges-and-immunities 
            restrictions upon disparate state taxation of residents and 
            nonresidents in Lunding v. New York Tax Appeals Tribunal.\1\ 
            In this case, the State denied nonresidents any deduction 
            from taxable income for alimony payments, although it 
            permitted residents to deduct such payments. While observing 
            that approximate equality between residents and nonresidents 
            was required by the clause, the Court acknowledged that 
            precise equality was neither necessary nor in most instances 
            possible. But it was required of the challenged State that 
            it demonstrate a ``substantial reason'' for the disparity, 
            and the discrimination must bear a ``substantial 
            relationship'' to that reason.\2\ A State, under this 
            analysis, may not deny nonresidents a general tax exemption 
            provided to residents that would reduce their tax burdens, 
            but it could limit specific expense deductions based on some 
            relationship between the expenses and their in-state 
            property or income. Here, the State flatly denied the 
            exemption. Moreover, the Court rejected various arguments 
            that had been presented, finding that most of those 
            arguments, while they might support targeted denials or 
            partial denials, simply reiterated the State's contention 
            that it need not afford any exemptions at all.
---------------------------------------------------------------------------

                    \1\ 522 U.S. 287 (1998).
                    \2\ 522 U.S. at 298.
---------------------------------------------------------------------------
DOCTRINE OF THE EQUALITY OF STATES
[P. 885, add to text following n.276:]

                    Similarly, Indian treaty rights to hunt, fish, and 
            gather on lands ceded to the Federal Government were not 
            extinguished by statehood. These ``usufructuary'' rights 
            were subject to reasonable state regulation, and hence were 
            not irreconcilable with state sovereignty over natural 
            resources.\3\
---------------------------------------------------------------------------

                    \3\ Minnesota v. Mille Lacs Band of Chippewa 
            Indians, 526 U.S. 172, 204-05 (1999) (overruling Ward v. 
            Race Horse, 163 U.S. 504 (1896)).
---------------------------------------------------------------------------
Property Rights of States to Soil Under Navigable Waters
[P. 887, delete last sentence of section]




                               ARTICLE VI

NATIONAL SUPREMACY
Obligation of State Courts Under the Supremacy Clause
[P. 921, add to n.20:]
                The Court's re-emphasis upon ``dual federalism'' has not 
            altered this principle. See, e.g., Printz v. United States, 
            521 U.S. 898, 905-10 (1997).
Supremacy Clause Versus the Tenth Amendment
[P. 930, add to text at end of carryover paragraph:]

                     Expanding upon its anti-commandeering rule, the 
            Court in Printz v. United States \1\ established 
            ``categorically'' the rule that ``[t]he Federal Government 
            may not compel the States to enact or administer a federal 
            regulatory program.'' \2\ At issue in Printz was a provision 
            of the Brady Handgun Violence Prevention Act, which 
            required, pending the development by the Attorney General of 
            a national system by which criminal background checks on 
            prospective firearms purchasers could be conducted, the 
            chief law enforcement officers of state and local 
            governments to conduct background checks to ascertain 
            whether applicants were ineligible to purchase handguns. 
            Confronting the absence of any textual basis for a 
            ``categorical'' rule, the Court looked to history, which in 
            its view demonstrated a paucity of congressional efforts to 
            impose affirmative duties upon the States.\3\ More 
            important, the Court relied on the ``structural 
            Constitution'' to demonstrate that the Constitution of 1787 
            had not taken from the States ``a residuary and inviolable 
            sovereignty,'' \4\ that it had, in fact and theory, retained 
            a system of ``dual sovereignty'' \5\ reflected in many 
            things but most notably in the constitutional conferral 
            ``upon Congress of not all governmental powers, but only 
            discrete, enumerated ones,'' which was expressed in the 
            Tenth Amendment. Thus, while it had earlier rejected the 
            commandeering of legislative assistance, the Court now made 
            clear that administrative officers and resources were also 
            fenced off from federal power.
---------------------------------------------------------------------------

                    \1\ 521 U.S. 898 (1997).
                    \2\ 521 U.S. at 933 (internal quotation marks 
            omitted) (quoting New York v. United States, 505 U.S. 144, 
            188 (1992)).
                    \3\ 521 U.S. at 904-18. Notably, the Court expressly 
            exempted from this rule the continuing role of the state 
            courts in the enforcement of federal law. Id. at 905-08.
                    \4\ 521 U.S. at 919 (quoting The Federalist No. 39 
            (Madison).
                    \5\ 521 U.S. at 918.
---------------------------------------------------------------------------

                     The scope of the rule thus expounded was unclear. 
            Particularly, Justice O'Connor in concurrence observed that 
            Congress retained the power to enlist the States through 
            contractual arrangements and on a voluntary basis. More 
            pointedly, she stated that ``the Court appropriately 
            refrains from deciding whether other purely ministerial 
            reporting requirements imposed by Congress on state and 
            local authorities pursuant to its Commerce Clause powers are 
            similarly invalid.'' \6\
---------------------------------------------------------------------------

                    \6\ 521 U.S. at 936 (citing 42 U.S.C. Sec. 5779(a) 
            (requiring state and local law enforcement agencies to 
            report cases of missing children to the Department of 
            Justice)).
---------------------------------------------------------------------------

                     A partial answer was provided in Reno v. Condon,\7\ 
            in which the Court upheld the Driver's Privacy Protection 
            Act against a charge that it offended the anti-commandeering 
            rule of New York and Printz. The Act in general limits 
            disclosure and resale without a driver's consent of personal 
            information contained in the records of state motor vehicle 
            departments, and requires disclosure of that information for 
            specified government record-keeeping purposes. While 
            conceding that the Act ``will require time and effort on the 
            part of state employees,'' the Court found this imposition 
            permissible because the Act regulates state activities 
            directly rather than requiring states to regulate private 
            activities.\8\
---------------------------------------------------------------------------

                    \7\ 120 S. Ct. 666 (2000).
                    \8\ 120 S. Ct. at 672.
---------------------------------------------------------------------------
The Doctrine of Federal Exemption From State Taxation
--Taxation of Government Contractors
[P. 935, add to n.118:]
                Arizona Dep't of Revenue v. Blaze Constr. Co., 526 U.S. 
            32 (1999) (the same rule applies when the contractual 
            services are rendered on an Indian reservation).
--Taxation of Salaries of Employees of Federal Agencies
[P. 937, add to n.123:]
                For application of the Act to salaries of federal 
            judges, see Jefferson County v. Acker, 527 U.S. 423 (1999) 
            (upholding imposition of a local occupational tax).




                             FIRST AMENDMENT

RELIGION
An Overview
--Court Tests Applied to Legislation Affecting Religion
[Pp. 973-74, change text following n.25 to read:]

                     and in several instances have not been applied at 
            all by the Court.

[P. 974, add to n.26 following Lee v. Weisman citation:]
                Zobrest v. Catalina Foothills Sch. 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, 512 U.S. 687 (1994) 
            (invalidating law creating special school district for 
            village composed exclusively of members of one religious 
            sect); Rosenberger v. University of Virginia, 515 U.S. 819 
            (1995) (upholding the extension of a university subsidy of 
            student publications to a student religious publication).
[P. 974, change text following n.26 to read:]

                     Nonetheless, the Court employed the Lemon tests in 
            its most recent Establishment Clause decisions,\1\ and it 
            remains the case that those tests have served as the primary 
            standard of Establishment Clause validity for the past three 
            decades. However, other tests have also been formulated and 
            used. Justice Kennedy has proffered ``coercion'' as an 
            alternative test for violations of the Establishment 
            Clause,\2\ and the Court has used that test as the basis for 
            decision from time to time.\3\ But that test has been 
            criticized on the grounds it would eliminate a principal 
            distinction between the Establishment Clause and the Free 
            Exercise Clause and make the former a ``virtual nullity.'' 
            \4\ Justice O'Connor has suggested ``endorsement'' as a 
            clarification of the Lemon test, i.e., that the 
            Establishment Clause is violated if the government intends 
            its action to endorse or disapprove of religion or if a 
            ``reasonable observer'' would perceive the government's 
            action as such an endorsement or disapproval \5\; and the 
            Court also has used this test for some of its decisions.\6\ 
            But others have criticized the endorsement test as too 
            amorphous to provide certain guidance.\7\ Justice O'Connor 
            has also suggested that it may be inappropriate to try to 
            shoehorn all Establishment Clause cases into one test and 
            has called instead for recognition that different contexts 
            may call for different approaches.\8\ In its two most recent 
            Establishment Clause decisions, it might be noted, the Court 
            employed all three tests in one decision \9\ and relied 
            primarily on the Lemon tests in the other.\10\
---------------------------------------------------------------------------

                    \1\ Agostini v. Felton, 521 U.S. 203 (1997) 
            (upholding under the Lemon tests the provision of remedial 
            educational services by public school teachers to sectarian 
            elementary and secondary schoolchildren on the premises of 
            the sectarian schools); Santa Fe Indep. Sch. Dist. v. Doe, 
            120 S. Ct. 2266 (2000) (holding unconstitutional under the 
            Lemon tests as well as under the coercion and endorsement 
            tests a school district policy permitting high school 
            students to decide by majority vote whether to have a 
            student offer a prayer over the public address system prior 
            to home football games); and Mitchell v. Helms, 120 S. Ct. 
            2530 (2000) (upholding under the Lemon tests a federally 
            funded program providing instructional materials and 
            equipment to public and private elementary and secondary 
            schools, including sectarian schools).
                    \2\ County of Allegheny v. Greater Pittsburgh ACLU, 
            492 U.S. 573, 655 (1989) (Justice Kennedy concurring in part 
            and dissenting in part).
                    \3\ Lee v. Weisman, 505 U.S. 577 (1992), and Santa 
            Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2216 (2000).
                    \4\ Lee v. Weisman, 505 U.S. 577, 621 (Justice 
            Souter concurring). See also County of Allegheny v. Greater 
            Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (Justice O'Connor 
            concurring in part and concurring in the judgment).
                    \5\ Lynch v. Donnelly, 465 U.S. 668, 688 (1984) 
            (Justice O'Connor concurring); Allegheny County v. Greater 
            Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (Justice O'Connor 
            concurring); Board of Educ. of Kiryas Joel Village v. 
            Grumet, 512 U.S. 687, 712 (1994) (Justice O'Connor 
            concurring).
                    \6\ Wallace v. Jaffrey, 472 U.S. 38 (1985); Grand 
            Rapids School Dist. v. Ball, 473 U.S. 373 (1985); County of 
            Allegheny v. American Civil Liberties Union Greater 
            Pittsburgh Chapter, 492 U.S. 573; Capitol Square Review and 
            Advisory Bd. v. Pinette, 515 U.S. 753 (1995); and Santa Fe 
            Indep. Sch. Dist. v. Doe, 120 S. Ct. 2216 (2000).
                    \7\ County of Allegheny v. Greater Pittsburgh ACLU, 
            492 U.S. 573, 655 (1989) (Justice Kennedy concurring in the 
            judgment in part and dissenting in part); and Capitol Square 
            Review and Advisory Bd. v. Pinette, 515 U.S. 753, 768 n.3 
            (1995) (Justice Scalia concurring).
                    \8\ Board of Educ. of Kiryas Joel Village v. Grumet, 
            512 U.S. 687, 718-723 (1994) (Justice O'Connor concurring in 
            part and concurring in the judgment).
                    \9\ Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 
            2266 (2000).
                    \10\ Mitchell v. Helms, 120 S. Ct. 2530 (2000).
---------------------------------------------------------------------------

                     In interpreting and applying the Free Exercise 
            Clause, the Court has consistently held religious beliefs to 
            be absolutely immune from governmental interference.\11\ But 
            it has used a number of standards to review government 
            action restrictive of religiously motivated conduct, ranging 
            from formal neutrality \12\ to clear and present danger \13\ 
            to strict scrutiny.\14\ For cases of intentional 
            governmental discrimination against religion, the Court 
            still employs strict scrutiny.\15\ But for most other free 
            exercise cases it has now reverted to a standard of formal 
            neutrality. ``[T]he right of free exercise,'' it recently 
            stated, ``does not relieve an individual of the obligation 
            to comply with a `valid and neutral law of general 
            applicability on the ground the law proscribes (or 
            prescribes) conduct that his religion prescribes (or 
            proscribes).' '' \16\
---------------------------------------------------------------------------

                    \11\ Reynolds v. United States, 98 U.S. (8 Otto) 145 
            (1878); Cantwell v. Connecticut, 310 U.S. 296 (1940); Church 
            of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 
            (1993).
                    \12\ Reynolds v. United States, 98 U.S. (8 Otto) 145 
            (1878); Braunfeld v. Brown, 366 U.S. 599 (1961).
                    \13\ Cantwell v. Connecticut, 310 U.S. 296 (1940).
                    \14\ Sherbert v. Verner, 374 U.S. 398 (1963); 
            Wisconsin v. Yoder, 406 U.S. 205 (1972).
                    \15\ Church of the Lukumi Babalu Aye v. City of 
            Hialeah, 508 U.S. 520 (1993).
                    \16\ Employment Div. v. Smith, 494 U.S. 872, 879 
            (1990), quoting United States v. Lee, 455 U.S. 252, 263, n.3 
            (1982) (Justice Stevens concurring in the judgment).
---------------------------------------------------------------------------
Establishment of Religion
--Financial Assistance to Church-Related Institutions
[P. 979, replace the paragraph that begins after n.49 
    following its first two sentences:]

                     Since that time the Court has gradually adopted a 
            more accommodating approach. It has upheld direct aid 
            programs that have been of only marginal benefit to the 
            religious mission of the recipient elementary and secondary 
            schools, tax benefit and scholarship aid programs where the 
            schools have received the assistance as the result of the 
            independent decisions of the parents or students who 
            initially receive the aid, and in its most recent decisions 
            direct aid programs which substantially benefit the 
            educational function of such schools. Indeed, in its most 
            recent decisions the Court has overturned several of the 
            most restrictive school aid precedents from its earlier 
            jurisprudence. Throughout, the Court has allowed greater 
            discretion with respect to aid programs benefiting 
            religiously affiliated colleges and social services 
            agencies.

[P. 979, add between the words ``requirement'' and ``to'' in 
    the first sentence of the second paragraph:]

                     of the Lemon tripartite test

[P. 979, replace the text and accompanying footnotes between 
    footnotes 50 and 60:]

                     The primary secular effect and no excessive 
            entanglement aspects of the Lemon test, however, have proven 
            much more divisive. As a consequence, the Court's 
            applications of these tests have not always been consistent, 
            and the rules guiding their application have not always been 
            easy to decipher. Moreover, in its most recent decisions the 
            Court has substantially modified the strictures these tests 
            have previously imposed on public aid to pervasively 
            sectarian entities.

                     In applying the primary effect and excessive 
            entanglement tests, the Court has drawn a distinction 
            between public aid programs that directly aid sectarian 
            entities and those that do so only indirectly. Aid provided 
            directly, the Court has said, must be limited to secular use 
            lest it have a primary effect of advancing religion. The 
            Establishment Clause ``absolutely prohibit[s] government-
            financed or government-sponsored indoctrination into the 
            beliefs of a particular religious faith.'' \17\ The 
            government may provide direct support to the secular 
            services and programs sponsored by religious entities, but 
            it cannot directly subsidize such organizations' religious 
            activities or proselytizing.\18\ Thus, the Court has struck 
            down as unconstitutional a program providing grants for the 
            maintenance and repair of sectarian elementary and secondary 
            school facilities, because the grants had no restrictions to 
            prevent their use for such purposes as defraying the costs 
            of building or maintaining chapels or classrooms in which 
            religion is taught,\19\ and a program subsidizing field trip 
            transportation for children attending sectarian elementary 
            and secondary schools, because field trips are inevitably 
            interwoven with the schools' educational functions.\20\
---------------------------------------------------------------------------

                    \17\ Grand Rapids School Dist. v. Ball, 473 U.S. 
            373, 385 (1985).
                    \18\ Lemon v. Kurtzman, 403 U.S. 602 (1971); 
            Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973); 
            Mitchell v. Helms, 120 S. Ct. 2530 (2000).
                    \19\ Committee for Pub. Educ. v. Nyquist, 413 U.S. 
            756 (1973).
                    \20\ Wolman v. Walter, 433 U.S. 229 (1977).
---------------------------------------------------------------------------

                     But the Court has not imposed a secular use 
            limitation on aid programs that benefit sectarian entities 
            only indirectly, i.e., as the result of decisions by someone 
            other than the government itself. The initial beneficiaries 
            of the public aid must be determined on the basis of 
            religiously neutral criteria, and they must have a genuine 
            choice about whether to use the aid at sectarian or 
            nonsectarian entities. But where those standards have been 
            met, the Court has upheld indirect aid programs even though 
            the sectarian institutions that ultimately benefit may use 
            the aid for religious purposes. Thus, the Court has upheld a 
            state program allowing taxpayers to take a deduction from 
            their gross income for educational expenses, including 
            tuition, incurred in sending their children to public or 
            private schools, because the deduction was ``available for 
            educational expenses incurred by all parents'' and the aid 
            became available to sectarian schools ``only as a result of 
            numerous, private choices of individual parents of school-
            age children.'' \21\ It has upheld for the same reasons a 
            vocational rehabilitation program that made a grant to a 
            blind person for training at a Bible college for a religious 
            vocation \22\ and another program that provided a sign-
            language interpreter for a deaf student attending a 
            sectarian secondary school.\23\ In contrast, the Court has 
            struck down tax benefit and educational voucher programs 
            where the initial beneficiaries have been limited largely to 
            the universe of parents of children attending sectarian 
            schools and where the aid, as a consequence, has been 
            virtually certain to go to the sectarian schools.\24\
---------------------------------------------------------------------------

                    \21\ Mueller v. Allen, 463 U.S. 388, 397-399 (1983).
                    \22\ Witters v. Washington Dep't of Social Services, 
            474 U.S. 481 (1986). In this decision the Court also cited 
            as important the factor that the program was not likely to 
            provide ``any significant portion of the aid expended under 
            the . . . program'' for religious education. Id. at 488.
                    \23\ Zobrest v. Catalina Foothills Sch. Dist., 509 
            U.S. 1 (1993).
                    \24\ Committee for Pub. Educ. v. Nyquist, 413 U.S. 
            756 (1973) and Sloan v. Lemon, 413 U.S. 825 (1973).
---------------------------------------------------------------------------

                     In applying the primary effect and excessive 
            entanglement tests, the Court has also drawn a distinction 
            between religious institutions that are pervasively 
            sectarian and those that are not. Organizations that are 
            permeated by a religious purpose and character in all that 
            they do have often been held by the Court to be 
            constitutionally ineligible for direct public aid. Direct 
            aid to religion-dominated institutions inevitably violates 
            the primary effect test, the Court has said, because such 
            aid generally cannot be limited to secular use in such 
            entities and, as a consequence, it has a primary effect of 
            advancing religion.\25\ Moreover, any effort to limit the 
            use of public aid by such entities to secular use inevitably 
            falls afoul of the excessive entanglement test, according to 
            the Court, because the risk of diversion of the aid to 
            religious use is so great that it necessitates an intrusive 
            government monitoring.\26\ But direct aid to religious 
            entities that are not pervasively sectarian, the Court has 
            held, is constitutionally permissible, because the secular 
            functions of such entities can be distinguished from their 
            religious ones for purposes of public aid and because the 
            risk of diversion of the aid to religious use is attenuated 
            and does not require an intrusive government monitoring. As 
            a practical matter, this distinction has had its most 
            serious consequences for programs providing aid directly to 
            sectarian elementary and secondary schools, because the 
            Court has, until recently, presumed such schools to be 
            pervasively sectarian and direct aid, as a consequence, to 
            be severely limited.\27\ The Court has presumed to the 
            contrary with respect to religiously-affiliated colleges, 
            hospitals, and social services providers; and as a 
            consequence it has found direct aid programs to such 
            entities to be permissible.\28\
---------------------------------------------------------------------------

                    \25\ See, e.g., Committee for Pub. Educ. v. Nyquist, 
            413 U.S. 756 (1973) (grants for the maintenance and repair 
            of sectarian school facilities); Meek v. Pittenger, 421 U.S. 
            349 (1975) (loan of secular instructional materials and 
            equipment); Grand Rapids School Dist. v. Ball, 473 U.S. 373 
            (1985) (hiring of parochial school teachers to provide 
            after-school instruction to the students attending such 
            schools).
                    \26\ See, e.g., Lemon v. Kurtzman, 403 U.S. 602 
            (1971) (subsidies for teachers of secular subjects) and 
            Aguilar v. Felton, 473 U.S. 402 (1985) (provision of 
            remedial and enrichment services by public school teachers 
            to eligible children attending sectarian elementary and 
            secondary schools on the premises of those schools).
                    \27\ See cases cited in the preceding two footnotes.
                    \28\ Bradfield v. Roberts, 175 U.S. 291 (1899) 
            (public subsidy of the construction of a wing of a Catholic 
            hospital on condition that it be used to provide care for 
            the poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) 
            (program of grants to colleges, including religiously-
            affiliated ones, for the construction of academic buildings 
            upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 
            (1976) (program of general purpose grants to colleges in the 
            state, including religiously-affiliated ones, upheld); and 
            Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to 
            public and private nonprofit organizations, including 
            religious ones, for the prevention of adolescent pregnancies 
            upheld).
---------------------------------------------------------------------------

                     In its most recent decisions the Court has modified 
            both the primary effect and excessive entanglement prongs of 
            the Lemon test as they apply to aid programs directly 
            benefiting sectarian elementary and secondary schools; and 
            in so doing it has overturned several prior decisions 
            imposing tight constraints on such aid. In Agostini v. 
            Felton \29\ the Court, in a 5 to 4 decision, abandoned the 
            presumptions that public school teachers giving instruction 
            on the premises of sectarian elementary and secondary 
            schools will be so affected by the religiosity of the 
            environment that they will inculcate religion and that, 
            consequently, an excessively entangling monitoring of their 
            services is constitutionally necessary. In Mitchell v. 
            Helms,\30\ in turn, it abandoned the presumptions that such 
            schools are so pervasively sectarian that their secular 
            educational functions cannot be differentiated from their 
            religious educational functions and that direct aid to their 
            educational functions, consequently, violates the 
            Establishment Clause. In reaching these conclusions and 
            upholding the aid programs in question, the Court overturned 
            its prior decision in Aguilar v. Felton \31\ and parts of 
            its decisions in Meek v. Pittenger,\32\ Wolman v. 
            Walter,\33\ and Grand Rapids School District v. Ball.\34\
---------------------------------------------------------------------------

                    \29\ 521 U.S. 203 (1997).
                    \30\ 120 S. Ct. 2530 (2000).
                    \31\ 473 U.S. 402 (1985).
                    \32\ 421 U.S. 349 (1975).
                    \33\ 433 U.S. 229 (1977).
                    \34\ 473 U.S. 373 (1985).
---------------------------------------------------------------------------

                     Thus, the Court's jurisprudence concerning public 
            aid to sectarian organizations has evolved over time, 
            particularly as it concerns public aid to sectarian 
            elementary and secondary schools. That evolution has given 
            some uncertainty to the rules that apply to any given form 
            of aid; and in both Agostini v. Felton \35\ and Mitchell v. 
            Helms \36\ the Court left open the possibility of a further 
            evolution in its thinking. Nonetheless, the cases give 
            substantial guidance.
---------------------------------------------------------------------------

                    \35\ 521 U.S. 203 (1994).
                    \36\ 120 S. Ct. 2530 (2000).
---------------------------------------------------------------------------
[P. 985, add to text following n.81:]

                     The Court's more recent decisions, however, have 
            rejected the reasoning and overturned the results of several 
            of these decisions. In two rulings the Court reversed course 
            with respect to the constitutionality of public school 
            personnel providing educational services on the premises of 
            pervasively sectarian schools. First, in Zobrest v. Catalina 
            Foothills School District \37\ the Court held the public 
            subsidy of a sign-language interpreter for a deaf student 
            attending a parochial school to create no primary effect or 
            entanglement problems. The payment did not relieve the 
            school of an expense that it would otherwise have borne, the 
            Court stated, and the interpreter had no role in selecting 
            or editing the content of any of the lessons. Reviving the 
            child benefit theory of its earlier cases, the Court said 
            that ``[t]he service at issue in this case is part of a 
            general government program that distributes benefits 
            neutrally to any child qualifying as `handicapped' under the 
            IDEA, without regard to the `sectarian-nonsectarian, or 
            public-nonpublic nature' of the school the child attends.''
---------------------------------------------------------------------------

                    \37\ 509 U.S. 1 (1993).
---------------------------------------------------------------------------

                     Secondly, and more pointedly, the Court in Agostini 
            v. Felton \38\ overturned both the result and the reasoning 
            of its decision in Aguilar v. Felton \39\ striking down the 
            Title I program as administered in New York City as well as 
            the analogous parts of its decisions in Meek v. Pittenger 
            \40\ and Grand Rapids School District v. Ball.\41\ The 
            assumptions on which those decisions had rested, the Court 
            explicitly stated, had been ``undermined'' by its more 
            recent decisions. Decisions such as Zobrest and Witters v. 
            Washington Department of Social Services,\42\ it said, had 
            repudiated the notions that the placement of a public 
            employee in a sectarian school creates an ``impermissible 
            symbolic link'' between government and religion, that ``all 
            government aid that directly aids the educational function 
            of religious schools'' is constitutionally forbidden, that 
            public teachers in a sectarian school necessarily pose a 
            serious risk of inculcating religion, and that ``pervasive 
            monitoring of [such] teachers is required.'' The proper 
            criterion under the primary effect prong of the Lemon test, 
            the Court asserted, is religious neutrality, i.e., whether 
            ``aid is allocated on the basis of neutral, secular criteria 
            that neither favor nor disfavor religion, and is made 
            available to both religious and secular beneficiaries on a 
            nondiscriminatory basis.'' \43\ Finding the Title I program 
            to meet that test, the Court concluded that ``accordingly, 
            we must acknowledge that Aguilar, as well as the portion of 
            Ball addressing Grand Rapids' Shared Time program, are no 
            longer good law.'' \44\
---------------------------------------------------------------------------

                    \38\ 521 U.S. 203 (1997).
                    \39\ 473 U.S. 402 (1985).
                    \40\ 421 U.S. 349 (1975).
                    \41\ 473 U.S. 373 (1985).
                    \42\ 474 U.S. 481 (1986).
                    \43\ In Agostini the Court nominally eliminated 
            entanglement as a separate prong of the Lemon test. ``[T]he 
            factors we use to assess whether an entanglement is 
            `excessive,' '' the Court stated, ``are similar to the 
            factors we use to examine `effect.' '' ``Thus,'' it 
            concluded, ``it is simplest to recognize why entanglement is 
            significant and treat it--as we did in Walz--as an aspect of 
            the inquiry into a statute's effect.'' Agostini v. Felton, 
            supra, at 232, 233.
                    \44\ Justice Souter, joined by Justices Stevens and 
            Ginsburg, dissented from the Court's ruling, contending that 
            the Establishment Clause mandates a ``flat ban on [the] 
            subsidization'' of religion (521 U.S. at 243) and that the 
            Court's contention that recent cases had undermined the 
            reasoning of Aguilar was a ``mistaken reading'' of the 
            cases. Id. at 248. Justice Breyer joined in the second 
            dissenting argument.
---------------------------------------------------------------------------

                     Most recently, in Mitchell v. Helms \45\ the Court 
            abandoned the presumptions that religious elementary and 
            secondary schools are so pervasively sectarian that they are 
            constitutionally ineligible to participate in public aid 
            programs directly benefiting their educational functions and 
            that direct aid to such institutions must be subject to an 
            intrusive and constitutionally fatal monitoring. At issue in 
            the case was a federal program providing funds to local 
            educational agencies to provide instructional materials and 
            equipment such as computer hardware and software, library 
            books, movie projectors, television sets, VCRs, laboratory 
            equipment, maps, and cassette recordings to public and 
            private elementary and secondary schools. Virtually 
            identical programs had previously been held unconstitutional 
            by the Court in Meek v. Pittenger \46\ and Wolman v. 
            Walter.\47\ But in this case the Court overturned those 
            decisions and held the program to be constitutional.
---------------------------------------------------------------------------

                    \45\ 120 S. Ct. 2530 (2000).
                    \46\ 421 U.S. 349 (1975).
                    \47\ 433 U.S. 229 (1977).
---------------------------------------------------------------------------

                     The Justices could agree on no majority opinion in 
            Mitchell but instead joined in three different opinions. The 
            opinions of Justice Thomas, joined by Chief Justice 
            Rehnquist and Justices Scalia and Kennedy, and of Justice 
            O'Connor, joined by Justice Breyer, found the program 
            constitutional. They agreed that to pass muster under the 
            primary effect prong of the Lemon test direct public aid has 
            to be secular in nature and distributed on the basis of 
            religiously neutral criteria. They also agreed, in contrast 
            to past rulings, that sectarian elementary and secondary 
            schools should not be deemed constitutionally ineligible for 
            direct aid on the grounds their secular educational 
            functions are ``inextricably intertwined'' with their 
            religious educational functions, i.e., that they are 
            pervasively sectarian. But their rationales for the 
            program's constitutionality then diverged. For Justice 
            Thomas it was sufficient that the instructional materials 
            were secular in nature and were distributed according to 
            neutral criteria. It made no difference whether the schools 
            used the aid for purposes of religious indoctrination or 
            not. But that was not sufficient for Justice O'Connor. She 
            adhered to the view that direct public aid has to be limited 
            to secular use by the recipient institutions. She further 
            asserted that a limitation to secular use could be honored 
            by the teachers in the sectarian schools and that the risk 
            that the aid would be used for religious purposes was not so 
            great as to require an intrusive and entangling government 
            monitoring.\48\
---------------------------------------------------------------------------

                    \48\ Justice O'Connor also cited several other 
            factors as ``sufficient'' to ensure the program's 
            constitutionality, without saying whether they were 
            ``constitutionally necessary''--that the aid supplemented 
            rather than supplanted the school's educational functions, 
            that no funds ever reached the coffers of the sectarian 
            schools, and that there were various administrative 
            regulations in place providing for some degree of monitoring 
            of the schools' use of the aid.
---------------------------------------------------------------------------

                     Justice Souter, joined by Justices Stevens and 
            Ginsburg, dissented on the grounds the Establishment Clause 
            bars ``aid supporting a sectarian school's religious 
            exercise or the discharge of its religious mission.'' 
            Adhering to the ``substantive principle of no aid'' first 
            articulated in the Everson case, he contended that direct 
            aid to pervasively sectarian institutions inevitably results 
            in the diversion of the aid for purposes of religious 
            indoctrination. He further argued that the aid in this case 
            had been so diverted.

                     As the opinion upholding the program's 
            constitutionality on the narrowest grounds, Justice 
            O'Connor's opinion provides the most current guidance on the 
            standards governing the constitutionality of aid programs 
            directly benefiting sectarian elementary and secondary 
            schools.

[P. 987, replace the first sentence of the first full 
    paragraph:]

                     The limits of the Nyquist holding were clarified in 
            1983.

[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 Sch. 
            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.
--Governmental Encouragement of Religion in Public Schools: 
    Prayers and Bible Reading
[P. 995, revise n.121 to read:]

                     505 U.S. 577 (1992).

[P. 996, add to text at end of section:]

                     In Santa Fe Independent School District v. Doe \49\ 
            the Court held a school district's policy permitting high 
            school students to vote on whether to have an ``invocation 
            and/or prayer'' delivered prior to home football games by a 
            student elected for that purpose to violate the 
            Establishment Clause. It found the policy to violate each 
            one of the tests it has formulated for Establishment Clause 
            cases. The preference given for an ``invocation'' in the 
            text of the school district's policy, the long history of 
            pre-game prayer led by a student ``chaplain'' in the school 
            district, and the widespread perception that ``the policy is 
            about prayer,'' the Court said, made clear that its purpose 
            was not secular but was to preserve a popular state-
            sponsored religious practice in violation of the first prong 
            of the Lemon test. Moreover, it said, the policy violated 
            the coercion test by forcing unwilling students into 
            participating in a religious exercise. Some students--the 
            cheerleaders, the band, football players--had to attend, it 
            noted, and others were compelled to do so by peer pressure. 
            ``The constitutional command will not permit the District 
            `to exact religious conformity from a student as the price' 
            of joining her classmates at a varsity football game,'' the 
            Court held. Finally, it said, the speech sanctioned by the 
            policy was not private speech but government-sponsored 
            speech that would be perceived as a government endorsement 
            of religion. The long history of pre-game prayer, the bias 
            toward religion in the policy itself, the fact that the 
            message would be ``delivered to a large audience assembled 
            as part of a regularly scheduled, school-sponsored function 
            conducted on school property'' and over the school's public 
            address system, the Court asserted, all meant that the 
            speech was not genuine private speech but would be perceived 
            as ``stamped with the school's seal of approval.'' The Court 
            concluded that ``the policy is invalid on its face because 
            it establishes an improper majoritarian election on 
            religion, and unquestionably has the purpose and creates the 
            perception of encouraging the delivery of prayer at a series 
            of important school events.''
---------------------------------------------------------------------------

                    \49\ 120 S. Ct. 2266 (2000).
---------------------------------------------------------------------------
--Access of Religious Groups to School 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; \50\ nor may public colleges exclude 
            student religious organizations from benefits otherwise 
            provided to a full spectrum of student ``news, information, 
            opinion, entertainment, or academic communications media 
            groups.'' \51\ These cases make clear that the Establishment 
            Clause does not 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.
---------------------------------------------------------------------------

                    \50\ Lamb's Chapel v. Center Moriches Sch. 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.
                    \51\ Rosenberger v. University of Virginia, 515 U.S. 
            819, 824 (1995).
---------------------------------------------------------------------------
--Religion in Governmental Observances
[P. 1002, add new heading following n.163:]
Religious Displays on Government Property
[P. 1004, add new paragraph following n.174:]

                     In Capitol Square Review and Advisory Board v. 
            Pinette,\52\ 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 during the Christmas season 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.
---------------------------------------------------------------------------

                    \52\ 515 U.S. 753 (1995). The Court was divided 7 to 
            2 on the merits of Pinette, a vote that obscured continuing 
            disagreement over the proper 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,'' 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,\53\ 
            invalidated a New York law creating a special school 
            district for an incorporated village 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 
            non-religious groups.
---------------------------------------------------------------------------

                    \53\ 512 U.S. 687 (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.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
[P. 1007, add to n.188:]
                Board of Educ. of Kiryas Joel Village v. Grumet, 512 
            U.S. 687, 706-07 (1994) (``accommodation is not a principle 
            without limits;'' one limitation is that ``neutrality as 
            among religions must be honored'').
--The Jehovah's Witnesses Cases
[P. 1010, add to n.201:]
                Church of the Lukumi Babalu Aye, Inc. v. City of 
            Hialeah, 508 U.S. 520 (1993) (Santeria faith).
--Free Exercise Exemption From General Governmental 
    Requirements
[P. 1018, add new footnote 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.'' \54\
---------------------------------------------------------------------------

                    \54\ 508 U.S. 520, 531 (1993).
---------------------------------------------------------------------------
[P. 1019, add new paragraphs following n.257:]

                     Because of the broad ramifications of Smith, the 
            political processes were soon utilized in an attempt to 
            provide additional legislative protection for religious 
            exercise. In the Religious Freedom Restoration Act of 1993 
            (RFRA),\55\ Congress sought to supersede Smith and 
            substitute a statutory rule of decision for free exercise 
            cases. The Act provided 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.'' \56\ But this 
            legislative effort was partially frustrated in 1997 when the 
            Court in City of Boerne v. Flores \57\ held the Act to be 
            unconstitutional as applied to the States, 6 to 3. In 
            applying RFRA to the States Congress had utilized its power 
            under Sec. 5 of the Fourteenth Amendment to enact 
            ``appropriate legislation'' to enforce the substantive 
            protections of the Amendment, including the religious 
            liberty protections incorporated in the Due Process Clause. 
            But the Court held that RFRA exceeded Congress' power under 
            Sec. 5, because the measure did not simply enforce a 
            constitutional right but substantively altered that right. 
            ``Congress,'' the Court said, ``does not enforce a 
            constitutional right by changing what the right is.'' \58\ 
            Moreover, it said, RFRA ``reflects a lack of proportionality 
            or congruence between the means adopted and the legitimate 
            end to be achieved . . . [and] is a considerable 
            congressional intrusion into the States' traditional 
            prerogatives and general authority to regulate for the 
            health and welfare of their citizens.'' \59\ ``RFRA,'' the 
            Court concluded, ``contradicts vital principles necessary to 
            maintain separation of powers and the federal balance.'' 
            \60\
---------------------------------------------------------------------------

                    \55\ Pub. L. No. 103-141, 107 Stat. 1488 (1993); 42 
            U.S.C. Sec. Sec. 2000bb to 2000bb-4.
                    \56\ Pub. L. No. 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).
                    \57\ 521 U.S. 507 (1997).
                    \58\ 521 U.S. at 519.
                    \59\ 521 U.S. at 533-34.
                    \60\ 521 U.S. at 536.
---------------------------------------------------------------------------

                     Boerne does not close the books on Smith, however. 
            It remains an open issue whether RFRA remains valid as 
            applied to the Federal Government, and Congress has already 
            used powers other than Sec. 5 to try to re-apply a strict 
            scrutiny standard to the States.\61\ These issues ensure 
            continuing litigation over the appropriate test for free 
            exercise cases.\62\
---------------------------------------------------------------------------

                    \61\ Late in the second session of the 106th 
            Congress, the House and the Senate passed, and President 
            Clinton signed into law, the ``Religious Land Use and 
            Institutionalized Persons Act of 2000.'' The Act utilizes 
            Congress' spending power and its power over interstate 
            commerce to impose a strict scrutiny test on state and local 
            zoning and landmarking laws and regulations which impose a 
            substantial burden on an individual's or institution's 
            exercise of religion. It utilizes the same powers to impose 
            a strict scrutiny test on state and local governments for 
            any substantial burdens they impose on the exercise of 
            religion by persons in state or locally run institutions 
            such as prisons, mental hospitals, juvenile detention 
            facilities, and nursing homes. See Pub. L. No. 106-274 
            (2000).
                    \62\ See, e.g., In re Young, 141 F.3d 854 (8th 
            Cir.), cert. denied, 525 U.S. 811 (1998) (lower court held 
            RFRA to be constitutional as applied to federal bankruptcy 
            law).
---------------------------------------------------------------------------
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and the 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.\63\ This leads to a ``state action'' (or 
            ``governmental action'') limitation similar to that 
            applicable to the Fourteenth Amendment.\64\ 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.'' \65\ 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.'' 
            \66\ The relationship of the government to broadcast 
            licensees affords other opportunities to explore the breadth 
            of ``governmental action.'' \67\
---------------------------------------------------------------------------

                    \63\ Through interpretation of the Fourteenth 
            Amendment, the prohibition extends to the States as well. 
            See discussion on incorporation, main text, pp. 957-64.
                    \64\ See discussion on state action, main text, pp. 
            1786-1802.
                    \65\ CBS v. Democratic Nat'l Comm., 412 U.S. 94, 115 
            (1973) (opinion of Chief Justice Burger).
                    \66\ Lebron v. National R.R. Passenger Corp., 513 
            U.S. 374, 392 (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. ``[I]t 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.'' 
            513 U.S. at 392.
                    \67\ 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
--Flag Salute Cases
[P. 1054, add to n.177:]
                The First Amendment does not preclude the Government 
            from ``compel[ling] financial contributions that are used to 
            fund advertising,'' provided such contributions do not 
            finance ``political or ideological'' views. Glickman v. 
            Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) 
            (upholding Secretary of Agriculture's marketing orders that 
            assessed fruit producers to cover the expenses of generic 
            advertising of California fruit). Nor does the First 
            Amendment preclude a public university from charging its 
            students an activity fee that is used to support student 
            organizations that engage in extracurricular speech, 
            provided the money is allocated to those groups by use of 
            viewpoint-neutral criteria. Board of Regents of the Univ. of 
            Wisconsin System v. Southworth, 120 S. Ct. 1346 (2000) 
            (upholding fee except to the extent a student referendum 
            substituted majority determinations for viewpoint neutrality 
            in allocating funds).
--Imposition of Consequences for Holding Certain Beliefs
[P. 1054, add to n.181 following citation 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 new paragraph 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.\68\ 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 not involving ``a trespass on the 
            organization's message itself.'' \69\ 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.'' \70\
---------------------------------------------------------------------------

                    \68\ 515 U.S. 557 (1995).
                    \69\ 515 U.S. at 580.
                    \70\ 515 U.S. at 580-81.
---------------------------------------------------------------------------

                     In Boy Scouts of America v. Dale,\71\ the Court 
            held that application of New Jersey's public accommodations 
            law to require the Boy Scouts of America to admit an avowed 
            homosexual as an adult member violated the organization's 
            First Amendment associational rights. Citing Hurley, the 
            Court held that ``[t]he forced inclusion of an unwanted 
            person in a group infringes the group's freedom of 
            expressive association if the presence of that person 
            affects in a significant way the group's ability to advocate 
            public or private viewpoints.'' \72\ The Boy Scouts, the 
            Court found, engages in expressive activity in seeking to 
            transmit a system of values, which include being ``morally 
            straight'' and ``clean.'' \73\ The Court ``accept[ed] the 
            Boy Scouts' assertion'' that the organization teaches that 
            homosexual conduct is not morally straight.\74\ The Court 
            also gave ``deference to [the] association's view of what 
            would impair its expression.'' \75\ Allowing a gay rights 
            activist to serve in the Scouts would ``force the 
            organization to send a message . . . that the Boy Scouts 
            accepts homosexual conduct as a legitimate form of 
            behavior.'' \76\
---------------------------------------------------------------------------

                    \71\ 120 S. Ct. 2446 (2000).
                    \72\ 120 S. Ct. at 2451.
                    \73\ 120 S. Ct. at 2452.
                    \74\ 120 S. Ct. at 2453.
                    \75\ 120 S. Ct. at 2453.
                    \76\ 120 S. Ct. at 2454.
---------------------------------------------------------------------------
--Political Association
[P. 1063, add to text before first full paragraph on page:]

                     In 1996 the Court extended Elrod and Branti to 
            protect independent government contractors.\77\
---------------------------------------------------------------------------

                    \77\ O'Hare Truck Serv., Inc. v. City of Northlake, 
            518 U.S. 712 (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, 518 U.S. 668 (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 Which 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,\78\ 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.\79\ 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 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.\80\
---------------------------------------------------------------------------

                    \78\ 513 U.S. 454 (1995).
                    \79\ 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.''
                    \80\ 513 U.S. at 477.
---------------------------------------------------------------------------
--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.'' \81\
---------------------------------------------------------------------------

                    \81\ Board of County Comm'rs v. Umbehr, 518 U.S. 
            668, 673 (1996).
---------------------------------------------------------------------------
[P. 1089, add to n.116:]
                In Waters v. Churchill, 511 U.S. 661 (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. 1095, add to text following n.143:]

                     Minnesota, however, could prohibit a candidate from 
            appearing on the ballot as the candidate of more than one 
            party.\82\ The Court wrote that election ``[r]egulations 
            imposing severe burdens on plaintiffs' [associational] 
            rights must be narrowly tailored and advance a compelling 
            state interest. Lesser burdens, however, trigger less 
            exacting review, and a State's important regulatory 
            interests will usually be enough to justify reasonable 
            nondiscriminatory restrictions.'' \83\ Minnesota's ban on 
            ``fusion'' candidates was not severe, as it left a party 
            that could not place another party's candidate on the ballot 
            free to communicate its preference for that candidate by 
            other means, and the ban was justified by ``valid state 
            interests in ballot integrity and political stability.'' 
            \84\
---------------------------------------------------------------------------

                    \82\ Timmons v. Twin City Area New Party, 520 U.S. 
            351 (1997).
                    \83\ 520 U.S. at 358 (internal quotation marks 
            omitted).
                    \84\ 520 U.S. at 369-70.
---------------------------------------------------------------------------
[P. 1097, add to n.150:]
                See also Colorado Republican Campaign Comm. v. FEC, 518 
            U.S. 604 (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).
[P. 1098, add to text following n.155:]

                     In Nixon v. Shrink Missouri Government PAC,\85\ the 
            Court held that Buckley v. Valeo ``is authority for state 
            limits on contributions to state political candidates,'' but 
            state limits ``need not be pegged to Buckley's dollars.'' 
            \86\ The Court in Nixon justified the limits on 
            contributions on the same grounds that it had in Buckley: 
            ``preventing corruption and the appearance of it that flows 
            from munificent campaign contributions.'' \87\ Further, 
            Nixon did ``not present a close call requiring further 
            definition of whatever the State's evidentiary obligation 
            may be'' to justify the contribution limits, as ``there is 
            little reason to doubt that sometimes large contributions 
            will work actual corruption of our political system, and no 
            reason to question the existence of a corresponding 
            suspicion among voters.'' \88\ As for the amount of the 
            contribution limits, Missouri's fluctuated in accordance 
            with the consumer price index, and, when suit was filed, 
            ranged from $275 to $1,075, depending on the state office or 
            size of constituency. The Court upheld these limits, writing 
            that, in Buckley, it had ``rejected the contention that 
            $1,000, or any other amount, was a constitutional minimum 
            below which legislatures could not regulate.'' \89\ The 
            relevant inquiry, rather, was ``whether the contribution 
            limitation was so radical in effect as to render political 
            association ineffective, drive the sound of a candidate's 
            voice below the level of notice, and render contributions 
            pointless.'' \90\
---------------------------------------------------------------------------

                    \85\ 120 S. Ct. 897 (2000).
                    \86\ 120 S. Ct. at 901.
                    \87\ 120 S. Ct. at 905.
                    \88\ 120 S. Ct. at 907-08.
                    \89\ 120 S. Ct. at 909.
                    \90\ 120 S. Ct. at 909.
---------------------------------------------------------------------------
[P. 1098, add to n.157:]
                The Court subsequently struck down a Colorado statute 
            that required ballot-initiative proponents, if they pay 
            circulators, to file reports disclosing circulators' names 
            and addresses and the total amount paid to each circulator. 
            Buckley v. American Constitutional Law Found., 525 U.S. 182 
            (1999). Although the Court upheld a requirement that 
            proponents' names and the total amount they have spent to 
            collect signatures be disclosed, as this served ``as a 
            control or check on domination of the initiative process by 
            affluent special interest groups'' (id. at 202), it found 
            that ``[t]he added benefit of revealing the names of paid 
            circulators and the amounts paid to each circulator . . . is 
            hardly apparent and has not been demonstrated.'' Id. at 203. 
            The Court also struck down a requirement that circulators be 
            registered voters, as the state's interest in ensuring that 
            circulators would be amenable to subpoenas was served by the 
            requirement that they be residents--a requirement on which 
            the Court had no occasion to rule.
--Government and Power of the Purse
[P. 1113, add to text following n.236:]

                     In National Endowment for the Arts v. Finley, the 
            Supreme Court upheld the constitutionality of a federal 
            statute requiring the NEA, in awarding grants, to ``tak[e] 
            into consideration general standards of decency and respect 
            for the diverse beliefs and values of the American public.'' 
            \91\ The Court acknowledged that, if the statute were 
            ``applied in a manner that raises concern about the 
            suppression of disfavored viewpoints,'' \92\ then such 
            application might be unconstitutional. The statute on its 
            face, however, is constitutional because it ``imposes no 
            categorical requirement,'' being merely ``advisory.'' \93\ 
            ``Any content-based considerations that may be taken into 
            account in the grant-making process are a consequence of the 
            nature of arts funding . . . . The `very assumption' of the 
            NEA is that grants will be awarded according to the 
            `artistic worth of competing applications,' and absolute 
            neutrality is simply `inconceivable.' '' \94\ The Court also 
            found that the terms of the statute, ``if they appeared in a 
            criminal statute or regulatory scheme, . . . could raise 
            substantial vagueness concerns . . . . But when the 
            Government is acting as patron rather than as sovereign, the 
            consequences of imprecision are not constitutionally 
            severe.'' \95\
---------------------------------------------------------------------------

                    \91\ 524 U.S. 569, 572 (1998).
                    \92\ 524 U.S. at 587.
                    \93\ 524 U.S. at 581. Justice Scalia, in a 
            concurring opinion joined by Justice Thomas, claimed that 
            this interpretation of the statute ``gutt[ed] it.'' Id. at 
            590. He believed that the statute ``establishes content- and 
            viewpoint-based criteria upon which grant applications are 
            to be evaluated. And that is perfectly constitutional.'' Id.
                    \94\ 524 U.S. at 585.
                    \95\ 524 U.S. at 588-89.
---------------------------------------------------------------------------
Governmental Regulation of Communications Industries
--Commercial Speech
[P. 1116, add to n.12:]
                Shapero was distinguished in Florida Bar v. Went For It, 
            Inc., 515 U.S. 618 (1995), a 5 to 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. ``Shapero dealt with a broad ban on 
            all direct mail solicitations'' (id. at 629), the Court 
            explained, and was not supported, as Florida's more limited 
            ban was, by findings describing the harms to be prevented by 
            the ban. Dissenting Justice Kennedy disagreed that there was 
            a valid distinction, pointing out that in Shapero the Court 
            had said that ``the mode of communication [mailings versus 
            potentially more abusive in-person solicitation] makes all 
            the difference,'' and that mailings were at issue in both 
            Shapero and Florida Bar. 515 U.S. at 637 (quoting Shapero, 
            486 U.S. at 475).
[P. 1116, add to text following n.13:]

                     , or prohibit a certified public accountant from 
            holding herself out as a certified financial planner.\96\
---------------------------------------------------------------------------

                    \96\ Ibanez v. Florida Bd. of Accountancy, 512 U.S. 
            136 (1994) (also ruling that Accountancy Board could not 
            reprimand the CPA, who was also a licensed attorney, for 
            truthfully 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.\97\ 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.'' \98\
---------------------------------------------------------------------------

                    \97\ Edenfield v. Fane, 507 U.S. 761, 775 (1993).
                    \98\ 507 U.S. at 777.
---------------------------------------------------------------------------
[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 citation:]
                Rubin v. Coors Brewing Co., 514 U.S. 476 (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.'' 514 U.S. at 486.
[P. 1118, add to n.20 following Bolger citation:]
                Rubin v. Coors Brewing Co., 514 U.S. 476 (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 aggregate effects, and does not limit its 
            consideration to effects on the challenging litigant.\99\
---------------------------------------------------------------------------

                    \99\ 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 citation:]
                Rubin v. Coors Brewing Co., 514 U.S. 476 (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.,\100\ 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.\101\ 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.'' \102\ By contrast, 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.\103\ The prohibition 
            ``directly served'' the congressional interest, and could be 
            applied to a broadcaster whose principal audience was in an 
            adjoining lottery State, and who sought to run ads for that 
            State's lottery.\104\
---------------------------------------------------------------------------

                    \100\ 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.
                    \101\ 507 U.S. at 424.
                    \102\ 507 U.S. at 426. 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 418.
                    \103\ United States v. Edge Broadcasting Co., 509 
            U.S. 418 (1993).
                    \104\ 508 U.S. at 428.
---------------------------------------------------------------------------

                     In 1999 the Court struck down a provision of the 
            same statute as applied to advertisements for private casino 
            gambling that are broadcast by radio and television stations 
            located in a State where such gambling is legal.\105\ The 
            Court emphasized the interrelatedness of the four parts of 
            the Central Hudson test; e.g., though the government has a 
            substantial interest in reducing the social costs of 
            gambling, the fact that the Congress has simultaneously 
            encouraged gambling, because of its economic benefits, makes 
            it more difficult for the government to demonstrate that its 
            restriction on commercial speech materially advances its 
            asserted interest and constitutes a reasonable ``fit.'' In 
            this case, ``[t]he operation of [18 U.S.C.] Sec. 1304 and 
            its attendant regulatory regime is so pierced by exemptions 
            and inconsistencies that the Government cannot hope to 
            exonerate it.'' \106\ ``[T]he regulation distinguishes among 
            the indistinct, permitting a variety of speech that poses 
            the same risks the Government purports to fear, while 
            banning messages unlikely to cause any harm at all.'' \107\
---------------------------------------------------------------------------

                    \105\ Greater New Orleans Broadcasting Ass'n, Inc. 
            v. United States, 527 U.S. 173 (1999).
                    \106\ 527 U.S. at 190.
                    \107\ 527 U.S. at 195.
---------------------------------------------------------------------------

                     In a 1986 decision the Court had asserted that 
            ``the greater power to completely ban casino gambling 
            necessarily includes the lesser power to ban advertising of 
            casino gambling.'' \108\ Subsequently, however, the Court 
            has eschewed reliance on Posadas,\109\ 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,\110\ 
            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.'' \111\ 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.\112\
---------------------------------------------------------------------------

                    \108\ 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.
                    \109\ In Rubin v. Coors Brewing Co., 514 U.S. 476 
            (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.
                    \110\ 517 U.S. 484 (1996).
                    \111\ 517 U.S. at 510 (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 511-
            12.
                    \112\ 517 U.S. at 531-32 (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.\113\ The rule against prior restraints may be 
            inapplicable,\114\ and disseminators of commercial speech 
            are not protected by the overbreadth doctrine.\115\
---------------------------------------------------------------------------

                    \113\ 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 as a content limitation.
                    \114\ Virginia State Bd. of Pharmacy v. Virginia 
            Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); 
            Central Hudson Gas & Electric Co. v. Public Serv. Comm'n, 
            447 U.S. 557, 571 n.13 (1980).
                    \115\ Bates v. State Bar of Arizona, 433 U.S. 350, 
            379-81 (1977); Central Hudson Gas & Electric Co. v. Public 
            Serv. Comm'n, 447 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.\116\ 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 \117\ may be more likely to 
            pass the test \118\ than regulations designed to implement 
            general health, safety, or moral concerns.\119\ As the 
            governmental interest becomes further 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.\120\
---------------------------------------------------------------------------

                    \116\ 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).
                    \117\ 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 
            484, 501 (1996) (opinion of Justice Stevens, joined by 
            Justices Kennedy and Ginsburg).
                    \118\ 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'').
                    \119\ 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., 515 U.S. 
            618, 631 (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., 514 U.S. 476 (1995) (striking down federal 
            statute prohibiting display of alcohol content on beer 
            labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 
            484 (1996) (striking down state law prohibiting display of 
            retail prices in ads for alcoholic beverages).
                    \120\ 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., 514 U.S. 476, 494 (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, 517 U.S. 484, 501 (1996) (a portion of the 
            opinion joined by Justices Kennedy and Ginsburg). Justice 
            Thomas, similarly, wrote that, in cases ``in which the 
            government's asserted interest is to keep legal users of a 
            product or service ignorant in order to manipulate their 
            choices in the marketplace, the Central Hudson test should 
            not be applied because such an `interest' is per se 
            illegitimate . . . .'' Greater New Orleans Broadcasting 
            Ass'n, Inc. v. United States, 527 U.S. 173, 197 (1999) 
            (Thomas, J., concurring) (internal quotation marks omitted).
---------------------------------------------------------------------------
--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, 515 U.S. 
            557 (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.\121\ 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.\122\ Cable 
            does, however, have unique characteristics that justify 
            regulations that single out cable for special 
            treatment.\123\ The Court in Turner Broadcasting System v. 
            FCC \124\ 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.\125\ The regulations could therefore be 
            measured by the ``intermediate level of scrutiny'' set forth 
            in United States v. O'Brien.\126\ 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 \127\ found it unnecessary to determine 
            whether strict scrutiny or some lesser standard applies, as 
            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,\128\ and a plurality \129\ 
            rejected assertions that public forum analysis,\130\ or a 
            rule giving cable operators' editorial rights ``general 
            primacy'' over the rights of programmers and viewers,\131\ 
            should govern.
---------------------------------------------------------------------------

                    \121\ 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, 512 U.S. 622, 636 (1994).
                    \122\ Turner Broadcasting System v. FCC, 512 U.S. 
            622, 638-39 (1994).
                    \123\ 512 U.S. at 661 (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).
                    \124\ 512 U.S. 622 (1994).
                    \125\ 512 U.S. at 645. ``Deciding whether a 
            particular regulation is content based or content neutral is 
            not always a simple task,'' the Court confessed. Id. at 642. 
            Indeed, dissenting Justice O'Connor, joined by Justices 
            Scalia, Ginsburg, and Thomas, viewed the rules as content-
            based. Id. at 674-82.
                    \126\ 391 U.S. 367, 377 (1968). The Court remanded 
            Turner for further factual findings relevant to the O'Brien 
            test. On remand, the district court upheld the must-carry 
            provisions, and the Supreme Court affirmed, concluding that 
            it ``cannot displace Congress' judgment respecting content-
            neutral regulations with our own, so long as its policy is 
            grounded on reasonable factual findings supported by 
            evidence that is substantial for a legislative 
            determination.'' Turner Broadcasting System v. FCC, 520 U.S. 
            180, 224 (1997).
                    \127\ 518 U.S. 727, 755 (1996) (invalidating 
            Sec. 10(b) of the Cable Television Consumer Protection and 
            Competition Act of 1992).
                    \128\ 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. In 
            upholding Sec. 10(a), Justice Breyer's plurality opinion 
            cited FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and 
            noted that cable television ``is as `accessible to children' 
            as over-the-air broadcasting, if not more so.'' 518 U.S. at 
            744.
                    \129\ This section of Justice Breyer's opinion was 
            joined by Justices Stevens, O'Connor, and Souter. 518 U.S. 
            at 749.
                    \130\ Justice Kennedy, joined by Justice Ginsburg, 
            advocated this approach. 518 U.S. at 791, and took the 
            plurality to task for its ``evasion of any clear legal 
            standard.'' Id. at 784.
                    \131\ Justice Thomas, joined by Chief Justice 
            Rehnquist and Justice Scalia, advocated this approach.
---------------------------------------------------------------------------

                     Subsequently, in United States v. Playboy 
            Entertainment Group, Inc.,\132\ the Supreme Court made 
            clear, as it had not in Denver Consortium, that strict 
            scrutiny applies to content-based speech restrictions on 
            cable television. The Court struck down a federal statute 
            designed to ``shield children from hearing or seeing images 
            resulting from signal bleed,'' which refers to blurred 
            images or sounds that come through to non-subscribers.\133\ 
            The statute required cable operators, on channels primarily 
            dedicated to sexually oriented programming, either to 
            scramble fully or otherwise fully block such channels, or to 
            not provide such programming when a significant number of 
            children are likely to be viewing it, which, under an FCC 
            regulation meant to transmit the programming only from 10 
            p.m. to 6 a.m. The Court apparently assumed that the 
            government had a compelling interest in protecting at least 
            some children from sexually oriented signal bleed, but found 
            that Congress had not used the least restrictive means to do 
            so. Congress in fact had enacted another provision that was 
            less restrictive and that served the government's purpose. 
            This other provision requires that, upon request by a cable 
            subscriber, a cable operator, without charge, fully scramble 
            or otherwise fully block any channel to which a subscriber 
            does not subscribe.
---------------------------------------------------------------------------

                    \132\ 120 S. Ct. 1878 (2000).
                    \133\ 120 S. Ct. at 1883.
---------------------------------------------------------------------------
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 485. The Court distinguished R.A.V. 
            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 487-88. 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 applies, 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 
            578.
--Non-obscene 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, 518 U.S. 727, 755 (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 and viewing interests to be considered either 
            narrowly or reasonably tailored to serve the government's 
            compelling interest in protecting children. In United States 
            v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 
            (2000), the Supreme Court, explicitly applying strict 
            scrutiny to a content-based speech restriction on cable TV, 
            struck down a federal statute designed to ``shield children 
            from hearing or seeing images resulting from signal bleed.'' 
            Id. at 1883.
                The Court seems to be becoming less absolute in viewing 
            the protection of all minors (regardless of age) from all 
            indecent material (regardless of its educational value and 
            parental approval) to be a compelling governmental interest. 
            In striking down the Communications Decency Act of 1996, the 
            Court would ``neither accept nor reject the Government's 
            submission that the First Amendment does not forbid a 
            blanket prohibition on all `indecent' and `patently 
            offensive' messages communicated to a 17-year-old--no matter 
            how much value the message may have and regardless of 
            parental approval. It is at least clear that the strength of 
            the Government's interest in protecting minors is not 
            equally strong throughout the coverage of this broad 
            statute.'' Reno v. American Civil Liberties Union, 521 U.S. 
            844, 878 (1997). In Playboy Entertainment Group, 120 S. Ct. 
            at 1892, the Court wrote: ``Even upon the assumption that 
            the Government has an interest in substituting itself for 
            informed and empowered parents, its interest is not 
            sufficiently compelling to justify this widespread 
            restriction on speech.'' The Court also would ``not discount 
            the possibility that a graphic image could have a negative 
            impact upon a young child'' (id. at 1893), thereby 
            suggesting again that it may take age into account when 
            applying strict scrutiny.
[P. 1161, add to text following n.61:]

                     In Reno v. American Civil Liberties Union,\134\ the 
            Court struck down two provisions of the Communications 
            Decency Act of 1996 (CDA), one of which would have 
            prohibited use of an ``interactive computer service'' to 
            display indecent material ``in a manner available to a 
            person under 18 years of age.'' \135\ This prohibition 
            would, in effect, have banned indecent material from all 
            Internet sites except those accessible by adults only. 
            Although intended ``to deny minors access to potentially 
            harmful speech . . . , [the CDA's] burden on adult speech,'' 
            the Court wrote, ``is unacceptable if less restrictive 
            alternatives would be at least as effective . . . . [T]he 
            Government may not `reduc[e] the adult population . . . to . 
            . . only what is fit for children.' '' \136\
---------------------------------------------------------------------------

                    \134\ 521 U.S. 844 (1997).
                    \135\ The other provision the Court struck down 
            would have prohibited indecent communications, by telephone, 
            fax, or e-mail, to minors.
                    \136\ 521 U.S. at 874-75. The Court did not address 
            whether, if less restrictive alternatives would not be as 
            effective, the Government would then be permitted to reduce 
            the adult population to only what is fit for children.
---------------------------------------------------------------------------

                     In Reno, the Court distinguished FCC v. Pacifica 
            Foundation,\137\ in which it had upheld the FCC's 
            restrictions on indecent radio and television broadcasts, 
            because (1) ``[t]he CDA's broad categorical prohibitions are 
            not limited to particular times and are not dependent on any 
            evaluation by an agency familiar with the unique 
            characteristics of the Internet,'' (2) the CDA imposes 
            criminal penalties, and the Court has never decided whether 
            indecent broadcasts ``would justify a criminal 
            prosecution,'' and (3) radio and television, unlike the 
            Internet, have, ``as a matter of history . . . `received the 
            most limited First Amendment protection,' . . . in large 
            part because warnings could not adequately protect the 
            listener from unexpected program content. . . . [On the 
            Internet], the risk of encountering indecent material by 
            accident is remote because a series of affirmative steps is 
            required to access specific material.'' \138\
---------------------------------------------------------------------------

                    \137\ 438 U.S. 726 (1978).
                    \138\ 521 U.S. at 867.
---------------------------------------------------------------------------
[P. 1161, start a new paragraph of text with the material 
    that previously followed n.61, and change the opening 
    words of that new paragraph from ``Also, government 
    may'' to ``The government may also''.]
[P. 1163, add to text following n.74:]

                     In Erie v. Pap's A.M.,\139\ the Supreme Court again 
            upheld the application of a statute prohibiting public 
            nudity to an ``adult'' entertainment establishment. Although 
            there was again only a plurality opinion, parts of that 
            opinion were joined by five justices. These five adopted 
            Justice Souter's position in Barnes, that the statute 
            satisfied the O'Brien test because it was intended ``to 
            combat harmful secondary effects,'' such as ``prostitution 
            and other criminal activity.'' \140\ Justice Souter, 
            however, though joining the plurality opinion, also 
            dissented in part. He continued to believe that secondary 
            effects were an adequate justification for banning nude 
            dancing, but did not believe ``that the city has made a 
            sufficient evidentiary showing to sustain its regulation,'' 
            and therefore would have remanded the case for further 
            proceedings.\141\ He acknowledged his ``mistake'' in Barnes 
            in failing to make the same demand for evidence.\142\
---------------------------------------------------------------------------

                    \139\ 120 S. Ct. 1382 (2000).
                    \140\ 120 S. Ct. at 1392, 1393.
                    \141\ 120 S. Ct. at 1402.
                    \142\ 120 S. Ct. at 1405.
---------------------------------------------------------------------------

                     The plurality opinion found that the effect of 
            Erie's public nudity ban ``on the erotic message . . . is de 
            minimis'' because Erie allowed dancers to perform wearing 
            only pasties and G-strings.\143\ It may follow that 
            ``requiring dancers to wear pasties and G-strings may not 
            greatly reduce . . . secondary effects, but O'Brien requires 
            only that the regulation further the interest of combating 
            such effects,'' not that it further it to a particular 
            extent.\144\ The plurality opinion did not address the 
            question of whether statutes prohibiting public nudity could 
            be applied to serious theater, but its reliance on secondary 
            effects suggests that they could not.
---------------------------------------------------------------------------

                    \143\ 120 S. Ct. at 1393. The plurality said that, 
            though nude dancing is ``expressive conduct,'' ``we think 
            that it falls only within the outer ambit of the First 
            Amendment's protection.'' Id. at 1391. The opinion also 
            quotes Justice Stevens to the same effect with regard to 
            erotic materials generally. Id. at 1393. In United States v. 
            Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1893 
            (2000), however, the Court wrote that it ``cannot be 
            influenced . . . by the perception that the regulation in 
            question is not a major one because the speech [``signal 
            bleed'' of sexually oriented cable programming] is not very 
            important.''
                    \144\ 120 S. Ct. at 1397.
---------------------------------------------------------------------------
Speech Plus--The Constitutional Law of Leafleting, 
    Picketing, and Demonstrating
--The Public Forum
[P. 1167, add to n.98 following citation to Niemotko v. 
    Maryland:]
                Capitol Square Review and Advisory Bd. v. Pinette, 515 
            U.S. 753 (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, 515 U.S. 819 (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 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).
 [P. 1169, add to n.106:]
                Candidate debates on public television are an example of 
            this third type of public forum: the ``nonpublic forum.'' 
            Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 
            666, 679 (1998). ``Although public broadcasting as a general 
            matter does not lend itself to scrutiny under the forum 
            doctrine [i.e., public broadcasters ordinarily are entitled 
            to the editorial discretion to engage in viewpoint 
            discrimination], candidate debates present the narrow 
            exception to this rule.'' Id. at 675. A public broadcaster, 
            therefore, may not engage in viewpoint discrimination in 
            granting or denying access to candidates. Under the third 
            type of forum analysis, however, it may restrict candidate 
            access for ``a reasonable, viewpoint-neutral'' reason, such 
            as a candidate's ``objective lack of support.'' Id. at 683.
--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,\145\ the Court refined principles 
            governing issuance of ``content-neutral'' injunctions that 
            restrict expressive activity.\146\ 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.'' \147\ 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.'' \148\ 
            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.\149\
---------------------------------------------------------------------------

                    \145\ 512 U.S. 753 (1994).
                    \146\ 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. 512 U.S. at 762.
                    \147\ 512 U.S. at 765.
                    \148\ 512 U.S. at 765.
                    \149\ Referring to Frisby v. Schultz, 487 U.S. 474 
            (1988).
---------------------------------------------------------------------------

                     In Schenck v. Pro-Choice Network of Western New 
            York,\150\ the Court applied Madsen to another injunction 
            that placed restrictions on demonstrating outside an 
            abortion clinic. The Court upheld the portion of the 
            injunction that banned ``demonstrating within fifteen feet 
            from either side or edge of, or in front of, doorways or 
            doorway entrances, parking lot entrances, driveways and 
            driveway entrances of such facilities''--what the Court 
            called ``fixed buffer zones.'' \151\ It struck down a 
            prohibition against demonstrating ``within fifteen feet of 
            any person or vehicles seeking access to or leaving such 
            facilities''--what it called ``floating buffer zones.'' 
            \152\ The Court cited ``public safety and order'' \153\ in 
            upholding the fixed buffer zones, but it found that the 
            floating buffer zones ``burden more speech than is necessary 
            to serve the relevant governmental interests'' \154\ because 
            they make it ``quite difficult for a protester who wishes to 
            engage in peaceful expressive activity to know how to remain 
            in compliance with the injunction.'' \155\ The Court also 
            upheld a provision specifying that ``once sidewalk 
            counselors who had entered the buffer zones were required to 
            `cease and desist' their counseling, they had to retreat 15 
            feet from the people they had been counseling and had to 
            remain outside the boundaries of the buffer zones.'' \156\
---------------------------------------------------------------------------

                    \150\ 519 U.S. 357 (1997).
                    \151\ 519 U.S. at 366 n.3.
                    \152\ 519 U.S. at 366 n.3.
                    \153\ 519 U.S. at 376.
                    \154\ 519 U.S. at 377.
                    \155\ 519 U.S. at 378.
                    \156\ 519 U.S. at 367.
---------------------------------------------------------------------------

                     In Hill v. Colorado,\157\ the Court upheld a 
            Colorado statute that makes it unlawful, within 100 feet of 
            the entrance to any health care facility, to ``knowingly 
            approach'' within eight feet of another person, without that 
            person's consent, ``for the purpose of passing a leaflet or 
            handbill to, displaying a sign to, or engaging in oral 
            protest, education, or counseling with such other person.'' 
            \158\ This decision is notable because it upheld a statute, 
            and not, as in Madsen and Schenck, merely an injunction 
            directed to particular parties. The Court found the statute 
            to be a content-neutral time, place, and manner regulation 
            of speech that ``reflects an acceptable balance between the 
            constitutionally protected rights of law-abiding speakers 
            and the interests of unwilling listeners. . . .'' \159\ The 
            restrictions are content-neutral because they regulate only 
            the places where some speech may occur, and because they 
            apply equally to all demonstrators, regardless of viewpoint. 
            Although the restrictions do not apply to all speech, the 
            ``kind of cursory examination'' that might be required to 
            distinguish casual conversation from protest, education, or 
            counseling is not ``problematic.'' \160\ The law is narrowly 
            tailored to achieve the state's interests. The eight-foot 
            restriction does not significantly impair the ability to 
            convey messages by signs, and ordinarily allows speakers to 
            come within a normal conversational distance of their 
            targets. Because the statute allows the speaker to remain in 
            one place, persons who wish to hand out leaflets may 
            position themselves beside entrances near the path of 
            oncoming pedestrians, and consequently are not deprived of 
            the opportunity to get the attention of persons entering a 
            clinic.
---------------------------------------------------------------------------

                    \157\ 120 S. Ct. 2480 (2000).
                    \158\ 120 S. Ct. at 2484.
                    \159\ 120 S. Ct. at 2488.
                    \160\ 120 S. Ct. at 2492.
---------------------------------------------------------------------------

                     Different types of issues were presented by Hurley 
            v. Irish-American Gay Group,\161\ 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.'' \162\
---------------------------------------------------------------------------

                    \161\ 515 U.S. 557 (1995).
                    \162\ 515 U.S. at 573.
---------------------------------------------------------------------------
--Leafleting, Handbilling, and the Like
[P. 1181, add to text after n.168:]

                     Talley's anonymity rationale was strengthened in 
            McIntyre v. Ohio Elections Commission,\163\ 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.\164\
---------------------------------------------------------------------------

                    \163\ 514 U.S. 334 (1995).
                    \164\ In Buckley v. American Constitutional Law 
            Found., 525 U.S. 182 (1999), the Court struck down a 
            Colorado statute requiring initiative-petition circulators 
            to wear identification badges. It found that ``the restraint 
            on speech in this case is more severe than was the restraint 
            in McIntyre'' because ``[p]etition circulation is a less 
            fleeting encounter, for the circulator must endeavor to 
            persuade electors to sign the petition. . . . [T]he badge 
            requirement compels personal name identification at the 
            precise moment when the circulator's interest in anonymity 
            is greatest.'' Id. at 199.
---------------------------------------------------------------------------
[P. 1181, substitute for first full paragraph on page:]

                     The handbilling cases were distinguished in City 
            Council v. Taxpayers for Vincent,\165\ 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 that did not restrict 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.\166\ Ten years later, however, 
            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.\167\ Prohibiting homeowners from 
            displaying political, religious, or personal messages on 
            their own property ``almost completely foreclosed a 
            venerable means of communication that is both unique and 
            important,'' and that is ``an unusually cheap and convenient 
            form of communication'' without viable alternatives for many 
            residents.\168\ 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.\169\
---------------------------------------------------------------------------

                    \165\ 466 U.S. 789 (1984).
                    \166\ 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.
                    \167\ City of Ladue v. Gilleo, 512 U.S. 43 (1994).
                    \168\ 512 U.S. at 54, 57.
                    \169\ 512 U.S. at 54. The city's legitimate interest 
            in reducing visual clutter could be addressed by ``more 
            temperate'' measures, the Court suggested. Id. at 58.




                            SECOND AMENDMENT

[P. 1193, add to n.1:]
                Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of 
            an Anglo-American Right (1994); Glenn Harlan Reynolds, A 
            Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 
            (1995); William Van Alystyne, The Second Amendment and the 
            Personal Right to Bear Arms, 43 Duke L.J. 1236 (1994).
[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 519 
            U.S. 912 (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''); United States v. Wright, 117 F.3d 
            1265 (11th Cir.), cert. denied 522 U.S. 1007 (1997) (member 
            of Georgia unorganized militia unable to establish that his 
            possession of machineguns and pipe bombs bore any connection 
            to the preservation or efficiency of a well regulated 
            militia).
[P. 1194, add to text at end of section:]

                     Pointing out that interest in the ``character of 
            the Second Amendment right has recently burgeoned,'' Justice 
            Thomas, concurring in the Court's invalidation (on other 
            grounds) of the Brady Handgun Violence Prevention Act, 
            questioned whether the Second Amendment bars federal 
            regulation of gun sales, and suggested that the Court might 
            determine ``at some future date . . . whether Justice Story 
            was correct . . . that the right to bear arms `has justly 
            been considered, as the palladium of the liberties of a 
            republic.' '' \1\
---------------------------------------------------------------------------

                    \1\ Printz v. United States, 521 U.S. 898, 937-39 
            (1997) (quoting 3 Commentaries Sec. 1890, p. 746 (1833)). 
            Justice Scalia, in extra-judicial writing, has sided with 
            the individual rights interpretation of the Amendment. See 
            Antonin Scalia, A Matter of Interpretation, Federal Courts 
            and the Law, 136-37 n.13 (A. Gutmann, ed., 1997) (responding 
            to Professor Tribe's critique of ``my interpretation of the 
            Second Amendment as a guarantee that the federal government 
            will not interfere with the individual's right to bear arms 
            for self-defense'').




                            FOURTH AMENDMENT

SEARCH AND SEIZURE
History and Scope of the Amendment
--The Interest Protected
[P. 1206, add to n.38 before Rakas v. Illinois citation, and 
    add parenthetical to Rakas citation:]
                But cf. Minnesota v. Carter, 525 U.S. 83 (1998) (a 
            person present in someone else's apartment for only a few 
            hours for the purpose of bagging cocaine for later sale has 
            no legitimate expectation of privacy); Cf. Rakas v. 
            Illinois, 439 U.S. 128 (1978) (auto passengers demonstrated 
            no legitimate expectation of privacy in glove compartment or 
            under seat of auto).
[P. 1206, add to end of 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. 1206, add to n.39:]
                Bond v. United States, 120 S. Ct. 1462, 1465 (2000).
--Searches and Inspections in Noncriminal Cases
[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, 517 U.S. 690 (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. 1226, delete first sentence of section and substitute 
    the following:]

                     The Fourth Amendment's ``general touchstone of 
            reasonableness . . . governs the method of execution of the 
            warrant.'' \2\ Until recently, however, most such issues 
            have been dealt with by statute and rule.\3\
---------------------------------------------------------------------------

                    \2\ United States v. Ramirez, 523 U.S. 65, 71 
            (1998).
                    \3\ Rule 41(c), Federal Rules of Criminal Procedure, 
            provides, inter alia, that the warrant shall be served in 
            the daytime, unless the magistrate ``for reasonable cause 
            shown'' directs in the warrant that it be served at some 
            other time. See Jones v. United States, 357 U.S. 493, 498-
            500 (1958); Gooding v. United States, 416 U.S. 430 (1974). A 
            separate statutory rule applies to narcotics cases. 21 
            U.S.C. Sec. 879(a).
---------------------------------------------------------------------------
[P. 1227, add to text following sentence containing n.158:]

                     In Wilson v. Arkansas,\4\ the Court determined that 
            the common law ``knock and announce'' rule is an element of 
            the Fourth Amendment reasonableness inquiry. The ``rule'' is 
            merely a presumption, however, that 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, and those in which 
            officers have reason to believe that destruction of evidence 
            is likely. The test, articulated two years later in Richards 
            v. Wisconsin,\5\ is whether police have ``a reasonable 
            suspicion that knocking and announcing their presence, under 
            the particular circumstances, would be dangerous or futile, 
            or that it would inhibit the effective investigation of the 
            crime.'' In Richards, the Court held that there is no 
            blanket exception to the rule whenever officers are 
            executing a search warrant in a felony drug investigation; 
            instead, a case-by-case analysis is required to determine 
            whether no-knock entry is justified under the 
            circumstances.\6\
---------------------------------------------------------------------------

                    \4\ 514 U.S. 927 (1995).
                    \5\ 520 U.S. 385, 394 (1997).
                    \6\ The fact that officers may have to destroy 
            property in order to conduct a no-knock entry has no bearing 
            on the reasonableness of their decision not to knock and 
            announce. United States v. Ramirez, 523 U.S. 65 (1998).
---------------------------------------------------------------------------
[P. 1227, delete sentence containing n.159:]
[P. 1227, add to text following n.161:]

                     Because police actions in execution of a warrant 
            must be related to the objectives of the authorized 
            intrusion, and because privacy of the home lies at the core 
            of the Fourth Amendment, police officers violate the 
            Amendment by bringing members of the media or other third 
            parties into a home during execution of a warrant if 
            presence of those persons was not in aid of execution of the 
            warrant.\7\
---------------------------------------------------------------------------

                    \7\ Wilson v. Layne, 526 U.S. 603 (1999). Accord, 
            Hanlon v. Berger, 526 U.S. 808 (1999) (media camera crew 
            ``ride-along'' with Fish and Wildlife Service agents 
            executing a warrant to search respondent's ranch for 
            evidence of illegal taking of wildlife).
---------------------------------------------------------------------------
Valid Searches and Seizures Without Warrants
--Detention Short of Arrest: Stop-and-Frisk
[P. 1230, add to n.12:]
                Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after 
            validly stopping car, officer may order passengers as well 
            as driver out of car; ``the same weighty interest in officer 
            safety is present regardless of whether the occupant of the 
            stopped car is a driver or passenger'').
[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.\8\ 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.\9\ 
            Also impermissible is physical manipulation, without 
            reasonable suspicion, of a bus passenger's carry-on luggage 
            stored in an overhead compartment.\10\
---------------------------------------------------------------------------

                    \8\ Minnesota v. Dickerson, 508 U.S. 366 (1993).
                    \9\ 508 U.S. at 375, 378-79. 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.
                    \10\ Bond v. United States, 120 S. Ct. 1462 (2000) 
            (bus passenger has reasonable expectation that, while other 
            passengers might handle his bag in order to make room for 
            their own, they will not ``feel the bag in an exploratory 
            manner'').
---------------------------------------------------------------------------
[P. 1231, add to n.16:]
                Illinois v. Wardlow, 120 S. Ct. 673 (2000) (unprovoked 
            flight from high crime area upon sight of police produces 
            ``reasonable suspicion'').
[P. 1231, add, after n.16, to end of sentence containing 
    n.16:]

                     , although the Court has held that an 
            uncorroborated, anonymous tip is insufficient basis for a 
            Terry stop, and that there is no ``firearms'' exception to 
            the reasonable suspicion requirement.\11\
---------------------------------------------------------------------------

                    \11\ Florida v. J.L., 120 S. Ct. 1375 (2000) 
            (reasonable suspicion requires that a tip be reliable in its 
            assertion of illegality, not merely in its identification of 
            someone).
---------------------------------------------------------------------------
--Search Incident to Arrest
[P. 1235, add to text following n.37:]

                     If there is no custodial arrest, as in the case of 
            a routine traffic stop, the threat to officer safety is ``a 
            good deal less,'' and the scope of a permissible search is 
            also more limited.\12\
---------------------------------------------------------------------------

                    \12\ Knowles v. Iowa, 525 U.S. 113, 117 (1998) 
            (officers may order driver and passengers out of car, and 
            may conduct Terry-type pat down upon reasonable suspicion 
            that they may be armed and dangerous).
---------------------------------------------------------------------------
[P. 1237, change n.48 to read:]
                437 U.S. 385, 390-91 (1978). Accord, Flippo v. West 
            Virginia, 120 S. Ct. 7 (1999) (per curiam).
--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, 518 U.S. 938, 940 (1996). 
            Accord, Maryland v. Dyson, 527 U.S. 465 (1999) (per curiam).
[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'' \13\ of traffic or safety violation 
            or some other criminal activity.\14\
---------------------------------------------------------------------------

                    \13\ 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.
                    \14\ 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, 517 
            U.S. 806 (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.
---------------------------------------------------------------------------
[P. 1240, add to text following n.66:]

                     Although officers who have stopped a car to issue a 
            routine traffic citation may conduct a Terry-type search, 
            even including a pat down of driver and passengers if there 
            is reasonable suspicion that they are armed and dangerous, 
            they may not conduct a full-blown search of the car.\15\
---------------------------------------------------------------------------

                    \15\ Knowles v. Iowa, 525 U.S. 113 (1998) 
            (invalidating an Iowa statute permitting a full-blown search 
            incident to a traffic citation).
---------------------------------------------------------------------------
[P. 1240, add new footnote at end of first sentence in first 
    full paragraph:]
                The same rule applies if it is the vehicle itself that 
            is forfeitable contraband; police, acting without a warrant, 
            may seize the vehicle from a public place. Florida v. White, 
            526 U.S. 559 (1999).
[P. 1240, change sentence ending with n.70 to read:

                     Police in undertaking a warrantless search of an 
            automobile may not extend the search to the persons of the 
            passengers therein \16\ unless there is a reasonable 
            suspicion that the passengers are armed and dangerous, in 
            which case a Terry pat down is permissible.\17\
---------------------------------------------------------------------------

                    \16\ United States v. Di Re, 332 U.S. 581 (1948); 
            Ybarra v. Illinois, 444 U.S. 85, 94-96 (1979).
                    \17\ Knowles v. Iowa, 525 U.S. Ct. 113, 118 (1999).
---------------------------------------------------------------------------
[P. 1240, change sentences beginning after n.71 to read:]

                     Luggage and other closed containers found in 
            automobiles may also be subjected to warrantless searches 
            based on probable cause, regardless of whether the luggage 
            or containers belong to the driver or to a passenger, and 
            regardless of whether it is the driver or a passenger who is 
            under suspicion.\18\ The same rule now applies whether . . . 
            .''
---------------------------------------------------------------------------

                    \18\ Wyoming v. Houghton, 526 U.S. 295, 307 (1999) 
            (``police officers with probable cause to search a car may 
            inspect passengers' belongings found in the car that are 
            capable of concealing the object of the search'').
---------------------------------------------------------------------------
--Consent Searches
P. 1242, add to n.82:]
                Ohio v. Robinette, 519 U.S. 33 (1996) (officer need not 
            always inform a detained motorist that he is free to go 
            before consent to search auto may be deemed voluntary).
--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 \19\ 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.'' \20\ 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.'' \21\ 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.\22\ 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.\23\
---------------------------------------------------------------------------

                    \19\ 515 U.S. 646 (1995).
                    \20\ Id. at 661.
                    \21\ Id.
                    \22\ Id. at 657.
                    \23\ Id. at 665.
---------------------------------------------------------------------------

                     No ``special needs'' justified Georgia's 
            requirement that candidates for state office certify that 
            they had passed a drug test, the Court ruled in Chandler v. 
            Miller.\24\ Rather, the Court concluded that Georgia's 
            requirement was ``symbolic'' rather than ``special.'' There 
            was nothing in the record to indicate any actual fear or 
            suspicion of drug use by state officials, the required 
            certification was not well designed to detect illegal drug 
            use, and candidates for state office, unlike the customs 
            officers held subject to drug testing in Von Raab, are 
            subject to ``relentless'' public scrutiny.
---------------------------------------------------------------------------

                    \24\ 520 U.S. 305 (1997).
---------------------------------------------------------------------------
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, 514 U.S. 1 (1995).
[P. 1267, add to text following n.213:]

                     The rule is inapplicable in parole revocation 
            hearings.\25\
---------------------------------------------------------------------------

                    \25\ Pennsylvania Bd. of Probation and Parole v. 
            Scott, 524 U.S. 357 (1998).
---------------------------------------------------------------------------
--Operation of the Rule: Standing
[P. 1270, add to n.229 following citation 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).




                             FIFTH AMENDMENT

DOUBLE JEOPARDY
Development and Scope
[P. 1282, n.59, delete citation to One Lot Emerald Cut 
    Stones case]
[P. 1283, n.60, delete citation to 89 Firearms case and 
    add:]
                Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 
            (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\ and the same is true of civil 
            commitment following expiration of a prison term.\2\
---------------------------------------------------------------------------

                    \1\ United States v. Ursery, 518 U.S. 267 (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.
                    \2\ Kansas v. Hendricks, 521 U.S. 346, 369-70 (1997) 
            (commitment under State's Sexually Violent Predator Act).
---------------------------------------------------------------------------
Reprosecution Following Acquittal
--Acquittal by Jury
[P. 1290, add footnote to end of first sentence in section:]
                What constitutes a jury acquittal may occasionally be 
            uncertain. In Schiro v. Farley, 510 U.S. 222 (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.
Reprosecution Following Conviction
--Sentence Increases
P. 1296, add to n.131:]
                In Monge v. California, 524 U.S. 721 (1998), the Court 
            refused to extend the ``narrow'' Bullington exception 
            outside the area of capital punishment.
[P. 1297, add new paragraph to text following n.133:]

                     The Court is also quite deferential to legislative 
            classification of recidivism sentencing enhancement factors 
            as relating only to sentencing and as not constituting 
            elements of an ``offense'' that must be proved beyond a 
            reasonable doubt. Ordinarily, therefore, sentence 
            enhancements cannot be construed as additional punishment 
            for the previous offense, and the Double Jeopardy Clause is 
            not implicated. ``Sentencing enhancements do not punish a 
            defendant for crimes for which he was not convicted, but 
            rather increase his sentence because of the manner in which 
            he committed his crime of conviction.'' \3\
---------------------------------------------------------------------------

                    \3\ United States v. Watts, 519 U.S. 148, 154 (1997) 
            (relying on Witte v. United States, 515 U.S. 389 (1995), and 
            holding that a sentencing court may consider earlier conduct 
            of which the defendant was acquitted, so long as that 
            conduct is proved by a preponderance of the evidence). See 
            also Almendarez-Torres v. United States, 523 U.S. 224 (1998) 
            (Congress' decision to treat recidivism as a sentencing 
            factor does not violate due process); Monge v. California, 
            524 U.S. 721 (1998) (retrial is permissible following 
            appellate holding of failure of proof relating to sentence 
            enhancement). Justice Scalia, whose dissent in Almendarez-
            Torres argued that there was constitutional doubt over 
            whether recidivism factors that increase a maximum sentence 
            must be treated as a separate offense for double jeopardy 
            purposes (523 U.S. at 248), answered that question 
            affirmatively in his dissent in Monge. 524 U.S. at 740-41.
---------------------------------------------------------------------------
``For the Same Offence''
--Legislative Discretion as to Multiple Sentences
[P. 1299, add to n.142:]
                But cf. Rutledge v. United States, 517 U.S. 292 (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.\4\ That interpretation held sway only 
            three years, however, before being repudiated as ``wrong in 
            principle [and] unstable in application.'' \5\
---------------------------------------------------------------------------

                    \4\ 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.
                    \5\ 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.\6\ 
            Similarly, recidivism-based sentence enhancement does not 
            constitute multiple punishment for the ``same'' prior 
            offense, but instead is a stiffened penalty for the later 
            crime.\7\
---------------------------------------------------------------------------

                    \6\ Witte v. United States, 515 U.S. 389 (1995) 
            (consideration of defendant's alleged cocaine dealings in 
            determining sentence for marijuana offenses does not bar 
            subsequent prosecution on cocaine charges).
                    \7\ Monge v. California, 524 U.S. 721, 728 (1998).
---------------------------------------------------------------------------
SELF-INCRIMINATION
Development and Scope
[P. 1306, add to text following n.177:]

                     Incrimination is not complete once guilt has been 
            adjudicated, and hence the privilege may be asserted during 
            the sentencing phase of trial.\8\
---------------------------------------------------------------------------

                    \8\ Estelle v. Smith, 451 U.S. 454, 462-63 (1981) 
            (``We can discern no basis to distinguish between the guilt 
            and penalty phases of respondent's capital murder trial so 
            far as the protection of the Fifth Amendment privilege is 
            concerned''); Mitchell v. United States, 526 U.S. 314 (1999) 
            (non-capital sentencing).
---------------------------------------------------------------------------
[P. 1307, add to n.180:]
                Two Justices recently challenged the interpretation 
            limiting application to ``testimonial'' disclosures, 
            claiming that the original understanding of the word 
            ``witness'' was not limited to someone who gives testimony, 
            but included someone who gives any kind of evidence. United 
            States v. Hubbell, 120 S. Ct. 2037, 2050 (2000) (Justice 
            Thomas, joined by Justice Scalia, concurring).
[P. 1307, delete n.181 and add to text following sentence 
    that contained n.181:]

                     A person may be compelled to produce specific 
            documents even though they contain incriminating 
            information.\9\ If, however, the existence of specific 
            documents is not known to the government, and the act of 
            production informs the government about the existence, 
            custody, or authenticity of the documents, then the 
            privilege is implicated.\10\ Application of these principles 
            resulted in a holding that the Independent Counsel could not 
            base a prosecution on incriminating evidence identified and 
            produced as the result of compliance with a broad subpoena 
            for all information relating to the individual's income, 
            employment, and professional relationships.\11\
---------------------------------------------------------------------------

                    \9\ Fisher v. United States, 425 U.S. 391 (1976). 
            Compelling a taxpayer by subpoena to produce documents 
            produced by his accountants from his own papers does not 
            involve testimonial self-incrimination and is not barred by 
            the privilege. ``[T]he Fifth Amendment does not 
            independently proscribe the compelled production of every 
            sort of incriminating evidence but applies only when the 
            accused is compelled to make a testimonial communication 
            that is incriminating.'' Id. at 408 (emphasis by Court). 
            Even further removed from the protection of the privilege is 
            seizure pursuant to a search warrant of business records in 
            the handwriting of the defendant. Andresen v. Maryland, 427 
            U.S. 463 (1976). A court order compelling a target of a 
            grand jury investigation to sign a consent directive 
            authorizing foreign banks to disclose records of any and all 
            accounts over which he had a right of withdrawal is not 
            testimonial in nature, since the factual assertions are 
            required of the banks and not of the target. Doe v. United 
            States, 487 U.S. 201 (1988).
                    \10\ In United States v. Doe, 465 U.S. 605 (1984), 
            the Court distinguished Fisher, upholding lower courts' 
            findings that the act of producing tax records implicates 
            the privilege because it would compel admission that the 
            records exist, that they were in the taxpayer's possession, 
            and that they are authentic. Similarly, a juvenile court's 
            order to produce a child implicates the privilege, because 
            the act of compliance ``would amount to testimony regarding 
            [the subject's] control over and possession of [the 
            child].'' Baltimore Dep't of Social Services v. Bouknight, 
            493 U.S. 549, 555 (1990).
                    \11\ United States v. Hubbell, 120 S. Ct. 2037 
            (2000).
---------------------------------------------------------------------------
[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).
[P. 1311, add to text at end of section:]

                     There is no ``cooperative internationalism'' that 
            parallels the cooperative federalism and cooperative 
            prosecution on which application against States is premised, 
            and consequently concern with foreign prosecution is beyond 
            the scope of the Self-Incrimination Clause.\12\
---------------------------------------------------------------------------

                    \12\ United States v. Balsys, 524 U.S. 666 (1998).
---------------------------------------------------------------------------
The Power to Compel Testimony and Disclosure
--Immunity
[P. 1315, add to n.224:]
                See also United States v. Hubbell, 120 S. Ct. 2037 
            (2000) (because the statute protects against derivative use 
            of compelled testimony, a prosecution cannot be based on 
            incriminating evidence revealed only as the result of 
            compliance with an extremely broad subpoena).
Confessions: Police Interrogation, Due Process, and Self-
    Incrimination
--Miranda v. Arizona
[P. 1332, delete all of first paragraph after first 
    sentence, and add the following new paragraphs:]

                     For years, the constitutional status of the Miranda 
            warnings was clouded in uncertainty. Had the Court announced 
            a constitutional rule, or merely set forth supervisory rules 
            that could be superseded by statutory rules? The fact that 
            Miranda itself applied the rules to a state court 
            proceeding, and that the Court in subsequent cases 
            consistently applied the warnings to state proceedings, was 
            strong evidence of constitutional moorings. In 1968, 
            however, Congress enacted a statute designed to set aside 
            Miranda in the federal courts and to reinstate the 
            traditional voluntariness test.\13\ The statute lay 
            unimplemented, for the most part, due to constitutional 
            doubts about it. The Court also created exceptions to the 
            Miranda warnings over the years, and referred to the 
            warnings as ``prophylactic'' \14\ and ``not themselves 
            rights protected by the Constitution.'' \15\ There were even 
            hints that some Justices might be willing to overrule the 
            decision.
---------------------------------------------------------------------------

                    \13\ Pub. L. No. 90-351, Sec. 701(a), 82 Stat. 210, 
            18 U.S.C. Sec. 3501. See S. Rep. No. 1097, 90th Cong., 2d 
            Sess. 37-53 (1968). An effort to enact a companion measure 
            applicable to the state courts was defeated.
                    \14\ New York v. Quarles, 467 U.S. 549, 653 (1984).
                    \15\ Michigan v. Tucker, 417 U.S. 433, 444 (1974).
---------------------------------------------------------------------------

                     In Dickerson v. United States,\16\ the Court 
            resolved the basic issue, holding that Miranda was a 
            constitutional decision that could not be overturned by 
            statute, and consequently that 18 U.S.C. Sec. 3501 was 
            unconstitutional. Application of Miranda warnings to state 
            proceedings necessarily implied a constitutional base, the 
            Court explained, since federal courts ``hold no supervisory 
            authority over state judicial proceedings.'' \17\ Moreover, 
            Miranda itself had purported to ``give concrete 
            constitutional guidance to law enforcement agencies and 
            courts to follow.'' \18\ That the Miranda rules are 
            constitution-based does not mean that they are 
            ``immutable,'' however. The Court repeated its invitation 
            for legislative action that would be ``at least as 
            effective'' in protecting a suspect's right to remain silent 
            during custodial interrogation. Section 3501, however, 
            merely reinstated the ``totality-of-the-circumstances'' rule 
            held inadequate in Miranda, so that provision could not be 
            considered as effective as the Miranda warnings.
---------------------------------------------------------------------------

                    \16\ 120 S. Ct. 2326 (2000).
                    \17\ 120 S. Ct. at 2333.
                    \18\ 120 S. Ct. at 2334 (quoting from Miranda, 384 
            U.S. at 441-42).
---------------------------------------------------------------------------

                     The Dickerson Court also rejected a request to 
            overrule Miranda. ``Whether or not we would agree with 
            Miranda's reasoning and its resulting rule, were we 
            addressing the issue in the first instance,'' Chief Justice 
            Rehnquist wrote for a seven-Justice majority, ``the 
            principles of stare decisis weigh heavily against overruling 
            it now.'' There was no special justification for overruling 
            the decision; subsequent cases had not undermined the 
            decision's doctrinal underpinnings, but rather had 
            ``reaffirm[ed]'' its ``core ruling.'' Moreover, Miranda 
            warnings had ``become so embedded in routine police practice 
            [that they] have become part of our national culture.'' \19\
---------------------------------------------------------------------------

                    \19\ 120 S. Ct. at 2336.
---------------------------------------------------------------------------
[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,\20\ such a course was squarely rejected in 1993. The 
            Stone v. Powell \21\ 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 claim that his conviction had been 
            obtained in violation of Miranda safeguards, the Court ruled 
            in Withrow v. Williams.\22\ The Miranda rule differs from 
            the Mapp v. Ohio \23\ 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.\24\ 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.\25\
---------------------------------------------------------------------------

                    \20\ 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.
                    \21\ 428 U.S. 465 (1976).
                    \22\ 507 U.S. 680 (1993).
                    \23\ 367 U.S. 643 (1961).
                    \24\ 507 U.S. at 691-92.
                    \25\ Id. at 693.
---------------------------------------------------------------------------
[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.\26\
---------------------------------------------------------------------------

                    \26\ Stansbury v. California, 511 U.S. 318 (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.\27\
---------------------------------------------------------------------------

                    \27\ Davis v. United States, 512 U.S. 452 (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,\28\ the Court held that the 
            rule of Stone v. Powell,\29\ 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.
---------------------------------------------------------------------------

                    \28\ 507 U.S. 680 (1993).
                    \29\ 428 U.S. 465 (1976). See main text, pp. 1265-
            66.
---------------------------------------------------------------------------
DUE PROCESS
Substantive Due Process
--Discrimination
[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).
--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,\30\ those decisions have recently been 
            distinguished, and their precedential value limited.\31\ 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.'' \32\ 
            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.'' \33\
---------------------------------------------------------------------------

                    \30\ 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).
                    \31\ 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, 512 U.S. 26, 30 (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.
                    \32\ 512 U.S. 26, 30 (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. 512 U.S. at 34.
                    \33\ 512 U.S. at 33.
---------------------------------------------------------------------------
--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). In Eastern Enterprises v. Apfel, 524 U.S. 498 
            (1998), the challenge was to a statutory requirement that 
            companies formerly engaged in mining pay miner retiree 
            health benefits, as applied to a company that had placed its 
            mining operations in a wholly owned subsidiary three decades 
            earlier, before labor agreements included an express promise 
            of lifetime benefits. In a fractured opinion, the justices 
            ruled 5 to 4 that the scheme's severe retroactive effect 
            offended the Constitution, though differing on the governing 
            clause. Four of the majority justices based the judgment 
            solely on takings law, while opining that ``there is a 
            question'' whether the statute violated due process as well. 
            The remaining majority justice, and the four dissenters, 
            viewed substantive due process as the sole appropriate 
            framework for resolving the case, but disagreed on whether a 
            violation had occurred.
[P. 1366, add to n.138:]
                The Court has addressed similar issues under breach of 
            contract theory. United States v. Winstar Corp., 518 U.S. 
            839 (1996).
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. 1387, add to text at end of sentence containing n.277:]

                     However, where a statute imposes severe and 
            ``substantially disproportionate'' retroactive liability 
            based on conduct several decades earlier, on parties that 
            could not have anticipated the liability, a taking (or 
            violation of due process) may occur. On this rationale, the 
            Court in Eastern Enterprises v. Apfel \34\ struck down the 
            Coal Miner Retiree Health Benefit Act's requirement that 
            companies formerly engaged in mining pay miner retiree 
            health benefits, as applied to a company that spun off its 
            mining operation in 1965 before collective bargaining 
            agreements included an express promise of lifetime benefits.
---------------------------------------------------------------------------

                    \34\ 524 U.S. 498 (1998). The split doctrinal basis 
            of Eastern Enterprises undercuts its precedent value, and 
            that of Connolly and Concrete Pipe, for takings law. A 
            majority of the justices (one supporting the judgment and 
            four dissenters) found substantive due process, not takings 
            law, to provide the analytical framework where, as in 
            Eastern Enterprises, the gravamen of the complaint is the 
            unfairness and irrationality of the statute, rather than its 
            economic impact.
---------------------------------------------------------------------------
[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.'' \35\ 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.\36\ Seven years 
            later, however, the Court announced in Dolan v. City of 
            Tigard \37\ that exaction 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 such conditions and the developmental impacts at 
            which they are aimed.\38\ The Court ruled in Dolan that 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. 
            The requisite nexus existed between the city's interest in 
            flood control and imposition of the floodplain easement, and 
            between the interest in minimizing traffic congestion and 
            the required bike path dedication, but the Court found that 
            the city had not established a rough proportionality of 
            degree. The floodplain/recreational easement not only 
            prevented the property owner from building in the 
            floodplain--a legitimate constraint--but also deprived her 
            of the right to exclude others. And the city had not 
            adequately demonstrated that the bike path was necessitated 
            by the additional vehicle and bicycle trips that would be 
            generated by the applicant's development.\39\
---------------------------------------------------------------------------

                    \35\ 483 U.S. at 842.
                    \36\ 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.
                    \37\ 512 U.S. 374 (1994).
                    \38\ 512 U.S. at 391. 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 405. 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 391 
            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 391.
                    \39\ 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 395-96.
---------------------------------------------------------------------------

                     Nollan and Dolan occasioned considerable debate 
            over the breadth of what became known as the ``heightened 
            scrutiny'' test. The stakes were plainly high, in that the 
            test, where it applies, lessens the traditional judicial 
            deference to local police power and places the burden of 
            proof as to rough proportionality on the government. In City 
            of Monterey v. Del Monte Dunes at Monterey, Ltd.,\40\ the 
            Court unanimously confined the Dolan rough proportionality 
            test--and, by implication, the Nollan nexus test--to the 
            exaction context that gave rise to those cases. For certain, 
            then, is that City of Monterey bars application of rough 
            proportionality to outright denials of development. Still 
            unclear, however, is whether the Court meant to place 
            outside Dolan exactions of a purely monetary nature, in 
            contrast with the dedication conditions involved in Nollan 
            and Dolan.\41\
---------------------------------------------------------------------------

                    \40\ 526 U.S. 687 (1999).
                    \41\ City of Monterey also appears to give a lax 
            interpretation to the ``substantially advances a legitimate 
            government interest'' test of Agins, by endorsing jury 
            instructions interpreting ``substantially advance'' to 
            require only a ``reasonable relationship.'' 526 U.S. at 704. 
            Such a reading of City of Monterey, however, puts it 
            squarely at odds with Nollan, 483 U.S. at 834 n.3, where the 
            Court earlier stressed that ``substantially advance'' 
            imposes a stricter standard than the due process one of 
            rational basis.
---------------------------------------------------------------------------
[P. 1393, add to text following n.306:]

                     Outside the land-use context, however, the Court 
            has now recognized a limited number of situations where 
            invalidation, rather than compensation, remains the 
            appropriate takings remedy.\42\
---------------------------------------------------------------------------

                    \42\ Eastern Enterprises v. Apfel, 524 U.S. 498 
            (1998) (statute imposing generalized monetary liability); 
            Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory 
            requirement that small fractional interests in allotted 
            Indian lands escheat to tribe, rather than pass on to 
            heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment 
            version of escheat statute).
---------------------------------------------------------------------------
[P. 1394, change n.312 to read:]
                Hodel v. Irving, 481 U.S. 704 (1987) (complete 
            abrogation of the right to pass on to heirs fractionated 
            interests in lands constitutes a taking); Babbitt v. Youpee, 
            519 U.S. 234 (1997) (same result based on ``severe'' 
            restriction of the right).
[P. 1394, add to text after n.312:]

                     Nor must property have realizable net value to fall 
            under the Takings Clause.\43\
---------------------------------------------------------------------------

                    \43\ Phillips v. Washington Legal Foundation, 524 
            U.S. 156 (1998) (interest on client funds in state Interest 
            on Lawyers Trust Account program is property of client 
            within meaning of Takings Clause, though funds could not 
            generate net interest in absence of program).
---------------------------------------------------------------------------
[P. 1395, delete remainder of paragraph after n.314 and 
    substitute the following new paragraph:]

                     Failure to incur such administrative (and judicial) 
            delays can result in dismissal of an as-applied taking claim 
            based on ripeness doctrine, an area of takings law that the 
            Court has developed extensively since Penn Central. In the 
            leading decision of Williamson County Regional Planning 
            Commission v. Hamilton Bank,\44\ the Court announced the 
            canonical two-part ripeness test for takings actions brought 
            in federal court against state and local agencies. First, 
            for an as-applied challenge, the property owner must obtain 
            from the regulating agency a ``final, definitive position'' 
            regarding how it will apply its regulation to the owner's 
            land. Second, the owner must exhaust any possibilities for 
            obtaining compensation from state fora before coming to 
            federal court. Thus, the claim in Williamson County was 
            found unripe because the plaintiff had failed to seek a 
            variance (first prong of test), and had not sought 
            compensation from the state courts in question even though 
            they recognized inverse condemnation claims (second prong). 
            Similarly, in MacDonald, Sommer & Frates v. County of 
            Yolo,\45\ a final decision was found lacking where the 
            landowner had been denied approval for one subdivision plan 
            calling for intense development, but that denial had not 
            foreclosed the possibility that a scaled-down (though still 
            economic) version would be approved.\46\ In a somewhat 
            different context, a taking challenge to a municipal rent 
            control ordinance was considered ``premature'' in the 
            absence of evidence that a tenant hardship provision had 
            ever been applied to reduce what would otherwise be 
            considered a reasonable rent increase.\47\ Facial challenges 
            dispense with the Williamson County final decision 
            prerequisite, though at great risk to the plaintiff in that 
            without pursuing administrative remedies, a claimant often 
            lacks evidence that a statute has the requisite economic 
            impact on his or her property.\48\
---------------------------------------------------------------------------

                    \44\ 473 U.S. 172 (1985).
                    \45\ 477 U.S. 340 (1986).
                    \46\ Most recently, the Court found the final-
            decision prerequisite met in Suitum v. Tahoe Regional 
            Planning Agency, 520 U.S. 725 (1997). That threshold 
            showing, said the Court, did not demand that a landowner 
            first apply for approval of her sale of transferrable 
            development rights (TDRs) where the parties agreed on the 
            TDRs to which she was entitled and their value was simply an 
            issue of fact. Suitum is also significant for reaffirming 
            the two-prong Williamson County ripeness test, despite its 
            rigorous application by lower federal courts to avoid 
            reaching the merits in the majority of cases.
                    \47\ Pennell v. City of San Jose, 485 U.S. 1 (1988).
                    \48\ See, e.g., Hodel v. Virginia Surface Mining & 
            Reclamation Ass'n, 452 U.S. 264, 295-97 (1981) (facial 
            challenge to surface mining law rejected); United States v. 
            Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere 
            permit requirement does not itself take property); Keystone 
            Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493-502 
            (1987) (facial challenge to anti-subsidence mining law 
            rejected).




                             SIXTH AMENDMENT

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 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\ Later, however, the Court backed off from this 
            latter ruling, holding that failure to submit the issue of 
            materiality to the jury in a tax fraud case can constitute 
            harmless error.\5\
---------------------------------------------------------------------------

                    \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, 515 U.S. 506 (1995).
                    \4\ Gaudin, 515 U.S. at 523.
                    \5\ Neder v. United States, 527 U.S. 1 (1999).
---------------------------------------------------------------------------
--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.\6\
---------------------------------------------------------------------------

                    \6\ Lewis v. United States, 518 U.S. 322 (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).
Impartial Jury
[P. 1416, add to n.104:]
                The same rule applies in the federal setting. United 
            States v. Martinez-Salazar, 120 S. Ct. 774 (2000).
PLACE OF TRIAL--JURY OF THE VICINAGE
[P. 1419, add to text following n.128:]

                     Thus, a defendant cannot be tried in Missouri for 
            money-laundering if the charged offenses occurred in Florida 
            and there was no evidence that the defendant had been 
            involved with the receipt or transportation of the proceeds 
            from Missouri.\7\
---------------------------------------------------------------------------

                    \7\ United States v. Cabrales, 524 U.S. 1 (1998).
---------------------------------------------------------------------------
CONFRONTATION
[P. 1422, add to text following n.154:]

                     A prosecutor, however, can comment on a defendant's 
            presence at trial, and call attention to the defendant's 
            opportunity to tailor his or her testimony to comport with 
            that of previous witnesses.\8\
---------------------------------------------------------------------------

                    \8\ Portuondo v. Agard, 120 S. Ct. 1119 (2000).
---------------------------------------------------------------------------
[P. 1423, add to n.158:]
                Bruton was held applicable, however, where a blank space 
            or the word ``deleted'' is substituted for the defendant's 
            name in a co-defendant's confession, making such confession 
            incriminating of the defendant on its face. Gray v. 
            Maryland, 523 U.S. 185 (1998).
[P. 1423, add to n.160:]
                Lilly v. Virginia, 527 U.S. 116 (1999).
ASSISTANCE OF COUNSEL
Development of an Absolute Right to Counsel at Trial
--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,\9\ 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.\10\
---------------------------------------------------------------------------

                    \9\ 506 U.S. 364 (1993).
                    \10\ 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).
---------------------------------------------------------------------------
[P. 1440, n.247, delete citation to Lozada v. Deeds and 
    accompanying sentence, and substitute the following:]
                Also not constituting per se ineffective assistance is a 
            defense counsel's failure to file a notice of appeal, or 
            even to consult with the defendant about an appeal. Roe v. 
            Flores-Ortega, 120 S. Ct. 1029 (2000).
--Self-Representation
[P. 1440, add to text at end of first paragraph of section:]

                     The right applies only at trial; there is no 
            constitutional right to self-representation on direct appeal 
            from a criminal conviction.\11\
---------------------------------------------------------------------------

                    \11\ Martinez v. Court of App. of Cal., Fourth App. 
            Dist., 120 S. Ct. 684 (2000). The Sixth Amendment itself 
            ``does not include any right to appeal.'' 120 S. Ct. at 690.
                            SEVENTH AMENDMENT

TRIAL BY JURY IN CIVIL CASES
Application of the Amendment
--Cases ``at Common Law''
[P. 1455, add to n.29:]
                Feltner v. Columbia Pictures Television, 523 U.S. 340 
            (1998) (jury trial required for copyright action with close 
            analogue at common law, even though the relief sought is not 
            actual damages but statutory damages based on what is 
            ``just).''
[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., 517 U.S. 
            370 (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., 518 U.S. 415 (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).
--Directed Verdicts
[P. 1461, add new footnote at end of sentence beginning 
    after n.61:]
                But see Hetzel v. Prince William County, 523 U.S. 208 
            (1998) (when an appeals court affirms liability but orders 
            level of damages to be reconsidered, the plaintiff has a 
            Seventh Amendment right either to accept the reduced award 
            or to have a new trial).




                            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.
---------------------------------------------------------------------------
[P. 1471, delete paragraph after n.35, and add the 
    following:]

                     In 1998, however, the Court discerned a previously 
            unseen vitality in the strictures of this clause. In United 
            States v. Bajakajian,\2\ the government sought to require 
            that a criminal defendant charged with violating federal 
            reporting requirements regarding the transportation of more 
            than $10,000 in currency out of the country forfeit the 
            currency involved, which totaled $357,144. The Court held 
            that the forfeiture \3\ in this particular case would 
            violate the Excessive Fines Clause and that the amount 
            forfeited was grossly disproportionate to the gravamen of 
            defendant's offense. In determining proportionality, the 
            Court did not limit itself to a comparison of the fine 
            amount to the proven offense, but it also considered the 
            particular facts of the case, the character of the 
            defendant, and the harm caused by the offense.\4\
---------------------------------------------------------------------------

                    \2\ 524 U.S. 321 (1998).
                    \3\ The Court held that a criminal forfeiture, which 
            is imposed at the time of sentencing, should be considered a 
            fine, because it serves as a punishment for the underlying 
            crime. 524 U.S. at 328. The Court distinguished this from 
            civil forfeiture, which, as an in rem proceeding against 
            property, would generally not function as a punishment of 
            the criminal defendant. 524 U.S. at 330-32.
                    \4\ In Bajakajian, the lower court found that the 
            currency in question was not derived from illegal 
            activities, and that the defendant, who had grown up a 
            member of the Armenian minority in Syria, had failed to 
            report the currency out of distrust of the government. 524 
            U.S. at 325-26. The Court found it relevant that the 
            defendant did not appear to be among the class of persons 
            for whom the statute was designed, i.e., a money launderer 
            or tax evader, and that the harm to the government from the 
            defendant's failure to report the currency was minimal. 524 
            U.S. at 338.
---------------------------------------------------------------------------
CRUEL AND UNUSUAL PUNISHMENTS
--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, 513 U.S. 504 
            (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, 512 U.S. 967 (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. 1480, add to n.81 after citation to Spaziano v. 
    Florida:]
                See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant 
            charged with felony murder did not have right to instruction 
            as to second degree murder or manslaughter, where Nebraska 
            traditionally did not consider these lesser included 
            offenses).
[P. 1481, add to n.82:]
                Romano v. Oklahoma, 512 U.S. 1 (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).
[P. 1483, add new footnote at end of 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 footnote 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.98:]
                A court is not required give a jury instruction 
            expressly directing the jury to consider mitigating 
            circumstance, as long as the instruction actually given 
            affords the jury the discretion to take such evidence into 
            consideration. Buchanan v. Angelone, 522 U.S. 269 (1998). By 
            the same token, a court did not offend the Constitution by 
            directing the jury's attention to a specific paragraph of a 
            constitutionally sufficient instruction in response to the 
            jury's question about proper construction of mitigating 
            circumstances. Weeks v. Angelone, 120 S. Ct. 727 (2000).
[P. 1484, add to text following n.100:]

                     Due process considerations can also come into play; 
            if the state argues for the death penalty based on the 
            defendant's future dangerousness, due process requires that 
            the jury be informed if the alternative to a death sentence 
            is a life sentence without possibility of parole.\5\
---------------------------------------------------------------------------

                    \5\ Simmons v. South Carolina, 512 U.S. 154 (1994). 
            But see Ramdass v. Angelone, 120 S. Ct. 2113 (2000) 
            (refusing to apply Simmons because the defendant was not 
            technically parole ineligible at time of sentencing).
---------------------------------------------------------------------------
[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, 516 U.S. 10 (1995) (per curiam).
[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.\6\ Third, a different 
            harmless error rule is applied when constitutional errors 
            are alleged in habeas proceedings. The Chapman v. California 
            \7\ rule applicable on direct appeal, requiring the State to 
            prove beyond a reasonable doubt that a constitutional error 
            is harmless, is inappropriate for habeas review, the Court 
            concluded, given the ``secondary and limited'' role of 
            federal habeas proceedings.\8\ The appropriate test is that 
            previously used only for non-constitutional errors: 
            ``whether the error `has substantial and injurious effect or 
            influence in determining the jury's verdict.' '' \9\ A 
            fourth rule was devised to . . . .
---------------------------------------------------------------------------

                    \6\ 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).
                    \7\ 386 U.S. 18 (1967).
                    \8\ Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).
                    \9\ Brecht v. Abrahamson, 507 U.S. at 637 (quoting 
            Kotteakos v. United States, 328 U.S. 750, 776 (1946)). 
            Brecht was a non-capital case, but the rule was subsequently 
            applied in a capital case. Calderon v. Coleman, 525 U.S. 141 
            (1998) (per curiam).
---------------------------------------------------------------------------
--Prisons and Punishment
[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).




                             TENTH AMENDMENT

RESERVED POWERS
Effect of Provision on Federal Powers
--Federal Police Power
 [P. 1514, add to text following n.42:]

                     Reversing this trend, the Court in 1995 in United 
            States v. Lopez \1\ 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.\2\ 
            Application of the same principle led five years later to 
            the Court's decision in United States v. Morrison \3\ 
            invalidating a provision of the Violence Against Women Act 
            (VAWA) that created a federal cause of action for victims of 
            gender-motivated violence. Congress may not regulate ``non-
            economic, violent criminal conduct based solely on that 
            conduct's aggregate effect on interstate commerce,'' the 
            Court concluded. ``[W]e can think of no better example of 
            the police power, which the Founders denied the National 
            Government and reposed in the States, than the suppression 
            of violent crime and vindication of its victims.'' \4\
---------------------------------------------------------------------------

                    \1\ 514 U.S. 549 (1995).
                    \2\ 514 U.S. at 552, 567-68 (1995).
                    \3\ 120 S. Ct. 1740 (2000).
                    \4\ 120 S. Ct. at 1754.
---------------------------------------------------------------------------
--Federal Regulations Affecting State Activities and 
    Instrumentalities
[P. 1518, add new paragraphs at end of section:]

                     Extending the principle applied in New York, the 
            Court in Printz v. United States \5\ held that Congress may 
            not ``circumvent'' the prohibition on commandeering a 
            state's regulatory processes ``by conscripting the State's 
            officers directly.'' \6\ Struck down in Printz were interim 
            provisions of the Brady Handgun Violence Protection Act that 
            required state and local law enforcement officers to conduct 
            background checks on prospective handgun purchasers. ``The 
            Federal Government may neither issue directives requiring 
            the States to address particular problems, nor command the 
            States' officers . . . to administer or enforce a federal 
            regulatory program. It matters not whether policymaking is 
            involved, and no case-by-case weighing of the burdens or 
            benefits is necessary; such commands are fundamentally 
            incompatible with our constitutional system of dual 
            sovereignty.'' \7\
---------------------------------------------------------------------------

                    \5\ 521 U.S. 898 (1997).
                    \6\ 521 U.S. at 935.
                    \7\ Id.
---------------------------------------------------------------------------

                     In Reno v. Condon,\8\ the Court distinguished New 
            York and Printz in upholding the Driver's Privacy Protection 
            Act of 1994 (DPPA), a federal law that restricts the 
            disclosure and resale of personal information contained in 
            the records of state motor vehicles departments. The Court 
            returned to a principle articulated in South Carolina v. 
            Baker that distinguishes between laws which improperly seek 
            to control the manner in which States regulate private 
            parties, and those which merely regulate state activities 
            directly.\9\ Here, the Court found that the DPPA ``does not 
            require the States in their sovereign capacities to regulate 
            their own citizens,'' but rather ``regulates the States as 
            the owners of databases.'' \10\ The Court saw no need to 
            decide whether a federal law may regulate the states 
            exclusively, since the DPPA is a law of general 
            applicability that regulates private resellers of 
            information as well as states.\11\
---------------------------------------------------------------------------

                    \8\ 120 S. Ct. 666 (2000).
                    \9\ 484 U.S. 505, 514-15 (1988).
                    \10\ 120 S. Ct. at 672.
                    \11\ Id.




                           ELEVENTH AMENDMENT

STATE IMMUNITY
Purpose and Early Interpretation
--Expansion of the Immunity of the States
[P. 1526, add to text following n.31:]

                     An in rem admiralty action may be brought, however, 
            if the State is not in possession of the res.\1\
---------------------------------------------------------------------------

                    \1\ California v. Deep Sea Research, Inc., 523 U.S. 
            491 (1998) (application of the Abandoned Shipwreck Act) 
            (distinguishing Ex parte New York and Treasure Salvors as 
            involving in rem actions against property actually in 
            possession of the State).
---------------------------------------------------------------------------
[P. 1527, add to n.32 after first citation:]
                Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign 
            nation may not contest validity of criminal conviction after 
            State's failure at time of arrest to comply with notice 
            requirements of Vienna Convention on Consular Relations).
The Nature of the States' Immunity
[P. 1527, add to n.33:]
                Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 
            (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, 517 U.S. 44, 154 (1996) (Justice Souter 
            dissenting).
[P. 1528, add to text following n.43:]

                     This view also has support in modern case law:'' . 
            . . the State's immunity from suit is a fundamental aspect 
            of sovereignty which the States enjoyed before the 
            ratification of the Constitution, and which they retain 
            today . . . .'' \2\
---------------------------------------------------------------------------

                    \2\ Alden v. Maine, 527 U.S. 706, 713 (1999).
---------------------------------------------------------------------------
[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,\3\ that Congress lacks the power under Article I to 
            abrogate state immunity under the Eleventh Amendment, and 
            with its ruling in Alden v. Maine that the broad principle 
            of sovereign immunity reflected in the Eleventh Amendment 
            bars suits against states in state courts as well as 
            federal. Both of these cases, however, were 5 to 4 
            decisions, with the four dissenting Justices believing that 
            Hans was wrongly decided.\4\
---------------------------------------------------------------------------

                    \3\ 517 U.S. 44 (1996).
                    \4\ Chief Justice Rehnquist wrote the opinion of the 
            Court in Seminole Tribe, 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. In Alden, Justice Kennedy wrote the 
            opinion of the Court, joined by the Chief Justice, and by 
            Justices O'Connor, Scalia, and Thomas. Justice Souter's 
            dissenting opinion was joined by Justices Stevens, Ginsburg, 
            and Breyer.
---------------------------------------------------------------------------
Suits Against States
--Consent to Suit and Waiver
[P. 1533, add to n.68:]
                The fact that a state agency can be indemnified for the 
            costs of litigation does not divest the agency of its 
            Eleventh Amendment immunity. Regents of the University of 
            California v. Doe, 519 U.S. 425 (1997).
--Congressional Withdrawal of Immunity
[P. 1535, delete last sentence of first paragraph and 
    substitute the following new paragraphs:]

                     Pennsylvania v. Union Gas lasted less than seven 
            years, the Court overruling it in Seminole Tribe of Florida 
            v. Florida.\5\ Chief Justice Rehnquist, writing for a 5 to 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].'' \6\ 
            In the majority's view, Union Gas had deviated from a line 
            of cases tracing back to Hans v. Louisiana \7\ that viewed 
            the Eleventh Amendment as implementing the ``fundamental 
            principle of sovereign immunity [that] limits the grant of 
            judicial authority in Article III.'' \8\ 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.'' \9\ Subsequent cases have confirmed this 
            interpretation.\10\
---------------------------------------------------------------------------

                    \5\ 517 U.S. 44 (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).
                    \6\ 517 U.S. at 63.
                    \7\ 134 U.S. 1 (1890).
                    \8\ 517 U.S. at 64 (quoting Pennhurst State School & 
            Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984).
                    \9\ 517 U.S. at 72-73. 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 sovereign 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.'' 517 U.S. at 117. 
            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 160.
                    \10\ College Savings Bank v. Florida Prepaid 
            Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (The 
            Trademark Remedy Clarification Act, an amendment to the 
            Lanham Act, did not validly abrogate state immunity); 
            Florida Prepaid Postsecondary Educ. Expense Bd. v. College 
            Savings Bank, 527 U.S. 627 (1999) (amendment to patent laws 
            abrogating state immunity from infringement suits is 
            invalid); Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 
            (2000) (abrogation of state immunity in the Age 
            Discrimination in Employment Act is invalid).
---------------------------------------------------------------------------

                     Section 5 of the Fourteenth Amendment, of course, 
            is another matter. Fitzpatrick v. Bitzer,\11\ ``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.\12\
---------------------------------------------------------------------------

                    \11\ 427 U.S. 445 (1976).
                    \12\ 517 U.S. at 65-66.
---------------------------------------------------------------------------
[Pp. 1535-36, delete remainder of paragraph following n.79 
    and add the following:]

                     This means that no legislative history will suffice 
            at all.\13\ Indeed, at one time a plurality of the Court was 
            of the apparent view that only if Congress refers 
            specifically to state sovereign immunity and the Eleventh 
            Amendment will its language be unmistakably clear.\14\ Thus, 
            the Court held in Atascadero that general language 
            subjecting to suit in federal court ``any recipient of 
            Federal assistance'' under the Rehabilitation Act was 
            insufficient to satisfy this test, not because of any 
            question about whether States are ``recipients'' within the 
            meaning of the provision but because ``given their 
            constitutional role, the States are not like any other class 
            of recipients of federal aid.'' \15\ As a result of these 
            rulings, Congress began to utilize the ``magic words'' the 
            Court appeared to insist on.\16\ More recently, however, the 
            Court has accepted less precise language.\17\
---------------------------------------------------------------------------

                    \13\ See, particularly, Dellmuth v. Muth, 491 U.S. 
            223, 230 (1989) (``legislative history generally will be 
            irrelevant''), and Hoffman v. Connecticut Dep't of Income 
            Maintenance, 492 U.S. 96, 103-04 (1989).
                    \14\ Justice Kennedy for the Court in Dellmuth, 
            supra, 491 U.S. at 231, expressly noted that the statute 
            before the Court did not demonstrate abrogation with 
            unmistakably clarity because, inter alia, it ``makes no 
            reference whatsoever to either the Eleventh Amendment or the 
            States' sovereign immunity.'' Justice Scalia, one of four 
            concurring Justices, expressed an ``understanding'' that the 
            Court's reasoning would allow for clearly expressed 
            abrogation of immunity ``without explicit reference to state 
            sovereign immunity or the Eleventh Amendment.'' Id. at 233.
                    \15\ Atascadero State Hosp. v. Scanlon, 473 U.S. 
            234, 246 (1985). And see Dellmuth v. Muth, 491 U.S. 223 
            (1989).
                    \16\ Following Atascadero, in 1986 Congress provided 
            that States were not to be immune under the Eleventh 
            Amendment from suits under several laws barring 
            discrimination by recipients of federal financial 
            assistance. Pub. L. No. 99-506, Sec. 1003, 100 Stat. 1845 
            (1986), 42 U.S.C. Sec. 2000d-7. Following Dellmuth, Congress 
            amended the statute to insert the explicit language. Pub. L. 
            No. 101-476, Sec. 103, 104 Stat. 1106 (1990), 20 U.S.C. 
            Sec. 1403. See also the Copyright Remedy Clarification Act, 
            Pub. L. No. 101-553, Sec. 2, 104 Stat. 2749 (1990), 17 
            U.S.C. Sec. 511 (making States and state officials liable in 
            damages for copyright violations).
                    \17\ Kimel v. Florida Board of Regents, 120 S. Ct. 
            631, 640-42 (2000). In Kimel, statutory language authorized 
            age discrimination suits ``against any employer (including a 
            public agency)'' and a public agency was defined to include 
            ``the government of a State or political subdivision 
            thereof.'' The Court found this language to be sufficiently 
            clear evidence of intent to abrogate state sovereign 
            immunity. The relevant portion of the opinion was written by 
            Justice O'Connor, and joined by Chief Justice Rehnquist and 
            Justices Stevens, Scalia, Souter, Ginsberg, and Breyer.
---------------------------------------------------------------------------
[P. 1536, delete paragraph containing n.85 and substitute 
    the following:]

                     Having previously reserved the question of whether 
            federal statutory rights could be enforced in state 
            courts,\18\ the Court in Alden v. Maine \19\ held that 
            states could also assert Eleventh Amendment ``sovereign 
            immunity'' in their own courts. Recognizing that the 
            application of the Eleventh Amendment, which limits only the 
            federal courts, was a ``misnomer'' \20\ as applied to state 
            courts, the Court nonetheless concluded that the principles 
            of common law sovereign immunity applied absent ``compelling 
            evidence'' that the States had surrendered such by the 
            ratification of the Constitution. Although this immunity is 
            subject to the same limitations as apply in federal courts, 
            the Court's decision effectively limited the application of 
            significant portions of federal law to state governments.
---------------------------------------------------------------------------

                    \18\ Employees of the Dep't of Pub. Health and 
            Welfare v. Department of Pub. Health and Welfare, 411 U.S. 
            279, 287 (1973).
                    \19\ 527 U.S. 706 (1999).
                    \20\ 527 U.S. at 713.
---------------------------------------------------------------------------
Suits Against State Officials
[P. 1540, add to n.105:]
                In the process of limiting application of Young, a Court 
            majority has recently referred to ``the Young fiction.'' 
            Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281 (1997).
[P. 1541, add to n.112:]
                In a case removed from state court, presence of a claim 
            barred by the Eleventh Amendment does not destroy 
            jurisdiction over non-barred claims. Wisconsin Dep't of 
            Corrections v. Schacht, 524 U.S. 381 (1998).
[P. 1544, add as first full paragraph on page (penultimate 
    paragraph in section):]

                     In Idaho v. Coeur d'Alene Tribe,\21\ the Court 
            further narrowed Ex parte Young. The implications of the 
            case are difficult to predict, due to the narrowness of the 
            Court's holding, the closeness of the vote (5 to 4), and the 
            inability of the majority to agree on a rationale. The 
            holding was that the Tribe's suit against state officials 
            for a declaratory judgment and injunction to establish the 
            Tribe's ownership and control of the submerged lands of Lake 
            Coeur d'Alene is barred by the Eleventh Amendment. The 
            Tribe's claim was based on federal law--Executive Orders 
            issued in the 1870s, prior to Idaho Statehood. The portion 
            of Justice Kennedy's opinion that represented the opinion of 
            the Court concluded that the Tribe's ``unusual'' suit was 
            ``the functional equivalent of a quiet title action which 
            implicates special sovereignty interests.'' \22\ The case 
            was ``unusual'' because state ownership of submerged lands 
            traces to the Constitution through the ``equal footing 
            doctrine,'' and because navigable waters ``uniquely 
            implicate sovereign interests.'' \23\ This was therefore no 
            ordinary property dispute in which the State would retain 
            regulatory control over land regardless of title. Rather, 
            grant of the ``far-reaching and invasive relief'' sought by 
            the Tribe ``would diminish, even extinguish, the State's 
            control over a vast reach of lands and waters long . . . 
            deemed to be an integral part of its territory.'' \24\ A 
            separate part of Justice Kennedy's opinion, joined only by 
            Chief Justice Rehnquist, advocated more broadscale 
            diminishment of Young. The two would apply case-by-case 
            balancing, taking into account the availability of a state 
            court forum to resolve the dispute and the importance of the 
            federal right at issue. Concurring Justice O'Connor, joined 
            by Justices Scalia and Thomas, rejected such balancing. 
            Young was inapplicable, Justice O'Connor explained, because 
            ``it simply cannot be said'' that a suit to divest the State 
            of all regulatory power over submerged lands ``is not a suit 
            against the State.'' \25\
---------------------------------------------------------------------------

                    \21\ 521 U.S. 261 (1997).
                    \22\ 521 U.S. at 281.
                    \23\ Id. at 284.
                    \24\ Id. at 282.
                    \25\ Id. at 296.




                          FOURTEENTH AMENDMENT

[P. 1568, change heading to:]
PRIVILEGES OR IMMUNITIES
P. 1571, add new paragraph to text following n.32:]

                     In a doctrinal shift of uncertain significance, the 
            Court will apparently evaluate challenges to durational 
            residency requirements, previously considered as violations 
            of the right to travel derived from the Equal Protection 
            Clause, as a potential violation of the Privileges or 
            Immunities Clause. Thus, where a California law restricted 
            the level of welfare benefits available to Californians 
            resident less than a year to the level of benefits available 
            in the State of their prior residence, the Court found a 
            violation of the right of newly arrived citizens to be 
            treated the same as other state citizens.\1\ Despite 
            suggestions that this opinion will open the door to a 
            ``guaranteed equal access to all public benefits,'' \2\ it 
            seems more likely that the Court is protecting the privilege 
            of being treated immediately as a full citizen of the State 
            one chooses for permanent residence.\3\
---------------------------------------------------------------------------

                    \1\ Saenz v. Roe, 526 U.S. 489 (1999).
                    \2\ 526 U.S. at 525 (Thomas, J., dissenting).
                    \3\ The right of United States citizens to choose 
            their State of residence is specifically protected by the 
            first sentence of the Fourteenth Amendment--``All persons 
            born or naturalized in the United States, and subject to the 
            jurisdiction thereof, are citizens of the United States and 
            of the State wherein they reside . . . .''
---------------------------------------------------------------------------
DUE PROCESS OF LAW
The Development of Substantive Due Process
--``Liberty''
[P. 1581, add to n.75:]
                County of Sacramento v. Lewis, 523 U.S. 833 (1998) 
            (high-speed automobile chase by police officer causing death 
            through deliberate or reckless indifference to life would 
            not violate the Fourteenth Amendment's guarantee of 
            substantive due process).
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.\4\
---------------------------------------------------------------------------

                    \4\ Bennis v. Michigan, 516 U.S. 442 (1996).
---------------------------------------------------------------------------
Procedure in Taxation
--Sufficiency of Remedy
[P. 1665, add to n.177:]
                See also Reich v. Collins, 513 U.S. 106 (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); Newsweek, Inc. v. Florida Dep't of Revenue, 522 
            U.S. 442 (1998) (per curiam) (violation of due process to 
            limit remedy to one who pursued pre-payment of tax, where 
            litigant reasonably relied on apparent availability of post-
            payment remedy).
Substantive Due Process and Noneconomic Liberty
[P. 1666, add to n.184:]
                The Court has subsequently made clear that these cases 
            dealt with ``a complete prohibition of the right to engage 
            in a calling,'' holding that ``a brief interruption'' did 
            not constitute a constitutional violation. Conn v. Gabbert, 
            526 U.S. 286, 292 (2000).
--Abortion
[P. 1679, add to text at end of section:]

                     The passage of various state laws restricting so-
            called ``partial birth abortions'' gave observers an 
            opportunity to see if the ``undue burden'' standard was in 
            fact likely to lead to a major retrenchment in abortion 
            regulation. In Stenberg v. Carhart,\5\ the Court reviewed a 
            Nebraska statute which forbade ``partially delivering 
            vaginally a living unborn child before killing the unborn 
            child and completing the delivery.'' The Court noted that 
            the prohibition appeared to apply to abortions performed 
            throughout a pregnancy, and that the lone exception was for 
            an abortion necessary to preserve the life of the mother.\6\ 
            Thus the statute brought into question both the distinction 
            maintained in Casey between pre-viability and post-viability 
            abortions, and the oft-repeated language from Roe, which 
            provides that abortion restrictions must contain exceptions 
            for situations where there is a threat to either the life or 
            health of a pregnant woman.\7\ The Court, however, 
            reaffirmed these central tenets of its abortion decisions, 
            striking down the Nebraska law because its possible 
            application to pre-viability abortions was too broad and the 
            exception for threats to the life of the mother was too 
            narrow.
---------------------------------------------------------------------------

                    \5\ 120 S. Ct. 2597 (2000).
                    \6\ The Nebraska law provided that such procedures 
            could be performed where ``necessary to save the life of the 
            mother whose life is endangered by a physical disorder, 
            physical illness, or physical injury, including a life-
            endangering physical condition caused by or arising from the 
            pregnancy itself.'' Neb. Rev. Stat. Ann. Sec. 28-328(1).
                    \7\ Roe v. Wade, 410 U.S. 113, 164 (1973).
---------------------------------------------------------------------------
--Family Relationships
[P. 1689, add to text at end of section:]

                     The Court has, however, imposed limits on the 
            ability of a court to require that children be made 
            available for visitation with grandparents and other third 
            parties. In Troxel v. Granville,\8\  the Court evaluated a 
            Washington State law which allowed ``any person'' to 
            petition a court ``at any time'' to obtain visitation rights 
            whenever visitation ``may serve the best interests'' of a 
            child. Under this law, a child's grandparents were awarded 
            more visitation with a child than was desired by the sole 
            surviving parent. A plurality of the Court, noting the 
            ``fundamental rights of parents to make decisions concerning 
            the care, custody and control of their children,'' \9\ 
            reversed this decision, noting the lack of deference to the 
            parent's wishes and the contravention of the traditional 
            presumption that a fit parent will act in the best interests 
            of a child.
---------------------------------------------------------------------------

                    \8\ 120 S. Ct. 2054 (2000).
                    \9\ 120 S. Ct. at 2060.
---------------------------------------------------------------------------
[P. 1690, change heading to:]
--Liberty Interests of the Retarded, Mentally Ill or 
    Abnormal: Civil Commitment and Treatment
[P. 1691, add paragraph to text after n.310:]

                     The Court's resolution of a case involving 
            persistent sexual offenders suggests that state civil 
            commitment systems, besides confining the dangerously 
            mentally ill, may also act to incapacitate persons 
            predisposed to engage in specific criminal behaviors. In 
            Kansas v. Hendricks,\10\ the Court upheld a Kansas state law 
            which allowed civil commitment without a showing of ``mental 
            illness,'' so that a defendant diagnosed as a pedophile 
            could be committed based on his having a ``mental 
            abnormality'' which made him ``likely to engage in acts of 
            sexual violence.'' Although the Court minimized the use of 
            this expanded nomenclature,\11\ the concept of abnormality 
            appears both more encompassing and less defined than the 
            concept of illness. It is unclear how, or whether, the Court 
            would distinguish this case from the indefinite civil 
            commitment of other recidivists such as drug offenders.
---------------------------------------------------------------------------

                    \10\ 521 U.S. 346 (1997).
                    \11\ 521 U.S. at 359. But see Foucha v. Louisiana, 
            504 U.S. 71, 80 (1992) (holding that a State can not hold a 
            person suffering from a personality disorder without clear 
            and convincing proof of a mental illness).
---------------------------------------------------------------------------
--``Right to Die''
[P. 1693, add new paragraph at end of section:]

                     In Washington v. Glucksberg,\12\ however, the 
            Supreme Court rejected an argument that the Due Process 
            Clause provides a terminally ill individual the right to 
            seek and obtain a physician's aid in committing suicide. 
            Reviewing a challenge to a state statutory prohibition 
            against assisted suicide, the Court noted that it moves with 
            ``utmost care'' before breaking new ground in the area of 
            liberty interests.\13\ The Court pointed out that suicide 
            and assisted suicide have long been disfavored by the 
            American judicial system, and courts have consistently 
            distinguished between passively allowing death to occur and 
            actively causing such death. The Court rejected the 
            applicability of Cruzan and other liberty interest 
            cases,\14\ noting that while many of the interests protected 
            by the Due Process Clause involve personal autonomy, not all 
            important, intimate, and personal decisions are so 
            protected. By rejecting the notion that assisted suicide is 
            constitutionally protected, the Court also appears to 
            preclude constitutional protection for other forms of 
            intervention in the death process, such as suicide or 
            euthanasia.\15\
---------------------------------------------------------------------------

                    \12\ 521 U.S. 702 (1997). In the companion case of 
            Vacco v. Quill, 521 U.S. 793 (1997), the Court also rejected 
            an argument that a State which prohibited assisted suicide 
            but which allowed termination of medical treatment resulting 
            in death unreasonably discriminated against the terminally 
            ill in violation of the Equal Protection Clause of the 
            Fourteenth Amendment.
                    \13\ 521 U.S. at 720.
                    \14\ E.g., Planned Parenthood v. Casey, 505 U.S. 833 
            (1992) (upholding a liberty interest in terminating 
            pregnancy).
                    \15\ A passing reference by Justice O'Connor in a 
            concurring opinion in Glucksberg and its companion case 
            Vacco v. Quill may, however, portend a liberty interest in 
            seeking pain relief, or ``palliative'' care. Glucksberg and 
            Vacco 521 U.S. at 736-37 (Justice O'Connor, concurring).
---------------------------------------------------------------------------
PROCEDURAL DUE PROCESS: CIVIL
Power of the States 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 what is reasonably 
            necessary to vindicate a state's interest in deterring 
            unlawful conduct.\16\ These limits may 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.\17\
---------------------------------------------------------------------------

                    \16\ BMW v. Gore, 517 U.S. 559 (1996) (holding that 
            a $2 million judgment 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).
                    \17\ BMW v. Gore, 517 U.S. at 574-75 (1996).
---------------------------------------------------------------------------
Jurisdiction
[P. 1716, change heading to:]
--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: Entitlements and Positivist 
    Recognition
[P. 1726, add to n.194:]
                But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 
            U.S. 40 (1999) (no liberty interest in worker's compensation 
            claim where reasonableness and necessity of particular 
            treatment had not yet been resolved).
[P. 1730, add to n.214 after citation to Connecticut Bd. of 
    Pardons v. Dumschat:]
                Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).
[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.\18\
---------------------------------------------------------------------------

                    \18\ Sandin v. Conner, 515 U.S. 472, 484 (1995) 
            (solitary confinement not atypical ``in relation to the 
            ordinary incidents of prison life'').
---------------------------------------------------------------------------
--When is Process Due
[P. 1737, add to text following n.246:]

                     Where the adverse action is less than termination 
            of employment, the governmental interest is significant, and 
            where reasonable grounds for such action have been 
            established separately, then a prompt hearing held after the 
            adverse action may be sufficient.\19\
---------------------------------------------------------------------------

                    \19\ Gilbert v. Homar, 520 U.S. 924 (1997) (no 
            hearing required prior to suspension without pay of tenured 
            police officer arrested and charged with a felony).
---------------------------------------------------------------------------
--The Requirements of Due Process
[P. 1741, add to n.269:]
                See also Richards v. Jefferson County, 517 U.S. 793 
            (1996) (res judicata may not apply where taxpayers who 
            challenged a county's occupation tax had not been informed 
            of the prior case and where their interests had not been 
            adequately protected).
[P. 1741, add to text following n.270:]

                     Such notice, however, need not describe the legal 
            procedures necessary to protect one's interest if such 
            procedures are otherwise set out in published, generally 
            available public sources.\20\
---------------------------------------------------------------------------

                    \20\ City of West Covina v. Perkins, 525 U.S. 234 
            (1999).
---------------------------------------------------------------------------
[P. 1741, add to n.272:]
                Even where a court finds that a party was not prejudiced 
            by the lack of a hearing, and where an appeal was provided, 
            failure to give notice and hearing is a violation of due 
            process. Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment 
            of judgment to impose attorney fees and costs to sole 
            shareholder of liable corporate structure invalid without 
            notice or opportunity to dispute).
PROCEDURAL DUE PROCESS--CRIMINAL
The Elements of Due Process
--Clarity in Criminal Statutes: The Void-For-Vagueness 
    Doctrine
[P. 1749, add to text following n.20:]

                     A loitering statute which is triggered by failure 
            to obey a police dispersal order may not, however, leave a 
            police officer absolute discretion to give such orders.\21\ 
            Thus, a Chicago ordinance, which required police to disperse 
            all persons in the company of ``criminal street gang 
            members'' while in a public place with ``no apparent 
            purpose,'' failed to meet the ``requirement that a 
            legislature establish minimal guidelines to govern law 
            enforcement.'' \22\ The Court noted that ``no apparent 
            purpose'' is inherently subjective because its application 
            depends on whether some purpose is ``apparent'' to the 
            officer, who would presumably have the discretion to ignore 
            such apparent purposes as engaging in idle conversation or 
            enjoying the evening air.
---------------------------------------------------------------------------

                    \21\ Kolender v. Lawson, 461 U.S. 352, 358 (1983).
                    \22\ City of Chicago v. Morales, 527 U.S. 41 (1999).
---------------------------------------------------------------------------
--Other Aspects of Statutory Notice
[P. 1750, add to text following n.24:]

                     Persons may be bound by a novel application of a 
            statute, not supported by Supreme Court or other 
            ``fundamentally similar'' case precedent, so long as the 
            court can find that, under the circumstance, ``unlawfulness 
            . . . is apparent'' to the defendant.\23\
---------------------------------------------------------------------------

                    \23\ United States v. Lanier, 520 U.S. 259, 271-72 
            (1997).
---------------------------------------------------------------------------
--Initiation of the 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, 510 U.S. 266 
            (1994) (holding that there is no civil rights action based 
            on the Fourteenth Amendment for arrest and imposition of 
            bond without probable cause).
--Fair Trial
[P. 1756, add to n.59:]
                But see Montana v. Egelhoff, 518 U.S. 37 (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, 516 U.S. 1 (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).
[P. 1760, add to text after n.80:]

                     This tripartite formulation, however, suffered from 
            two apparent defects. First, it added a new level of 
            complexity to a Brady inquiry by requiring a reviewing court 
            to establish the appropriate level of materiality by 
            classifying the situation under which the exculpating 
            information was withheld. Secondly, it was not clear, if the 
            fairness of the trial was at issue, why the circumstances of 
            the failure to disclose should affect the evaluation of the 
            impact that such information would have had on the trial. 
            Ultimately, the Court addressed these issue in the case of 
            United States v. Bagley.\24\
---------------------------------------------------------------------------

                    \24\ 473 U.S. 667 (1985).
---------------------------------------------------------------------------

                     In Bagley, the Court established a uniform test for 
            materiality, choosing the most stringent requirement that 
            evidence is material if there is a reasonable probability 
            that, had the evidence been disclosed to the defense, the 
            outcome of the proceeding would have been different.\25\ 
            This materiality standard, found in contexts outside of 
            Brady inquiries,\26\ is applied not only to exculpatory 
            material, but also to material which would be relevant to 
            the impeachment of witnesses.\27\ Thus, where inconsistent 
            earlier statements by a witness to an abduction were not 
            disclosed, the Court weighed the specific effect that 
            impeachment of the witness would have had on establishing 
            the required elements of the crime and of the punishment, 
            finally concluding that there was no reasonable probability 
            that the jury would have reached a different result.\28\
---------------------------------------------------------------------------

                    \25\ 473 U.S. at 682.
                    \26\ See United States v. Malenzuela-Bernal, 458 
            U.S. 858 (1982) (testimony made unavailable by Government 
            deportation of witnesses); Strickland v. Washington, 466 
            U.S. 668 (1984) (incompetence of counsel).
                    \27\ 473 U.S. at 676-77.
                    \28\ Strickler v. Greene, 527 U.S. 263 (1999).
---------------------------------------------------------------------------
--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.)
[Pp. 1763-64, delete last sentence and accompanying footnote 
    (96) of paragraph beginning on P. 1763 and substitute 
    the following:]

                     Another important distinction which can 
            substantially affect a prosecutor's burden is whether a fact 
            to be established is an element of a crime or instead is a 
            sentencing factor. While a criminal conviction is generally 
            established by a jury using the ``beyond a reasonable 
            doubt'' standard, sentencing factors are generally evaluated 
            by a judge using few evidentiary rules and under the more 
            lenient ``preponderance of the evidence'' standard. The 
            Court has taken a formalistic approach to this issue, 
            allowing States to essentially designate which facts fall 
            under which of these two categories. For instance, the Court 
            has held that whether a defendant ``visibly possessed a 
            gun'' during a crime may be designated by a State as a 
            sentencing factor, and determined by a judge based on the 
            preponderance of evidence.\29\ Although the Court has 
            generally deferred to the legislature's characterizations in 
            this area, it limited this principle in Apprendi v. New 
            Jersey by holding that a sentencing factor cannot be used to 
            increase the maximum penalty imposed for the underlying 
            crime.\30\ This decision, however, arguably conflicts with 
            related case law regarding, for instance, the use of 
            aggravating sentencing factors by judges in imposing capital 
            punishment,\31\ and is subject to at least one 
            exception.\32\ Further, the decision might be evaded by 
            legislatures revising criminal provisions to increase 
            maximum penalties, and then providing for mitigating factors 
            within the newly established sentencing range.
---------------------------------------------------------------------------

                    \29\ McMillan v. Pennsylvania, 477 U.S. 79 (1986).
                    \30\ 120 S. Ct. 2348, 2362-63 (2000) (interpreting 
            New Jersey's ``hate crime'' law).
                    \31\ Walton v. Arizona, 497 U.S. 639 (1990).
                    \32\ This limiting principle does not apply to 
            sentencing enhancements based on recidivism. Apprendi, 120 
            S. Ct. at 2361-62. As enhancement of sentences for repeat 
            offenders is traditionally considered a part of sentencing, 
            establishing the existence of previous valid convictions may 
            be made by a judge, despite its resulting in a significant 
            increase in the maximum sentence available. Almendarez-
            Torres v. United States, 523 U.S. 224 (1998) (deported alien 
            reentering the United States subject to a maximum sentence 
            of two years, but upon proof of felony record, is subject to 
            a maximum of 20 years). See also Parke v. Raley, 506 U.S. 20 
            (1992) (where prosecutor has burden of establishing a prior 
            conviction, a defendant can be required to bear the burden 
            of challenging the validity of such a conviction).
---------------------------------------------------------------------------
--Sentencing
[P. 1765, add to n.104 after Spencer v. Texas citation:]
                Parke v. Raley, 506 U.S. 20 (1992).
--The Problem of the Incompetent or Insane Defendant or 
    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, 
            517 U.S. 348 (1996).
--Rights of Prisoners
[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, 518 U.S. 343 (1996) (no 
            requirement that the State ``enable [a] prisoner to discover 
            grievances, and to litigate effectively'').
--Probation and Parole
[P. 1780, add to text at end of sentence carried over from 
    P. 1779:]

                     The power of the executive to pardon, or grant 
            clemency, being a matter of grace, is rarely subject to 
            judicial review.\33\
---------------------------------------------------------------------------

                    \33\ Ohio Adult Parole Auth. v. Woodard, 523 U.S. 
            272 (1998).
---------------------------------------------------------------------------
EQUAL PROTECTION OF THE LAWS
Scope and Application
--State Action
[P. 1796, add to text following n.52:]

                     Or, where a state worker's compensation statute was 
            amended to allow, but not require, an insurer to suspend 
            payment for medical treatment while the necessity of the 
            treatment was being evaluated by an independent evaluator, 
            this action was not fairly attributable to the State, and 
            thus pre-deprivation notice of the suspension was not 
            required.\34\
---------------------------------------------------------------------------

                    \34\ American Mfrs. Mut. Ins. Co. v. Sullivan, 526 
            U.S. 40 (1999).
---------------------------------------------------------------------------
[P. 1797, add to text following n.60:]

                     to private insurance companies providing worker's 
            compensation coverage,\35\
---------------------------------------------------------------------------

                    \35\ American Mfrs. Mut. Ins. Co. v. Sullivan, 526 
            U.S. 40 (1999)
---------------------------------------------------------------------------
Equal Protection: Judging Classifications by Law
--The Traditional Standard: Restrained Review
[P. 1805, add footnote to sentence appearing after n.107:]
                Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide 
            prohibition does not violate Equal Protection Clause by 
            distinguishing between terminally ill patients on life-
            support systems who are allowed to direct the removal of 
            such systems and patients who are not on life support 
            systems and are not allowed to hasten death by self-
            administering prescribed drugs).
TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND 
    RELATED EXERCISES OF THE POLICE POWER
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.
Other Business and Employment Relations
--Labor Relations
[P. 1834, add footnote at end of first sentence of section:]
                Central State Univ. v. American Ass'n of Univ. 
            Professors, 526 U.S. 124 (1999) (upholding limitation on the 
            authority of public university professors to bargain over 
            instructional workloads).
EQUAL PROTECTION AND RACE
Juries
[P. 1855, add to n.79 after citation to Powers v. Ohio:]
                Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury).
Permissible Remedial Utilizations 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 \36\ 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.'' \37\
---------------------------------------------------------------------------

                    \36\ 515 U.S. 200 (1995). This was a 5 to 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.
                    \37\ 515 U.S. at 227 (emphasis original).
---------------------------------------------------------------------------
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.,\38\ 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 gender-based exclusion of jurors would 
            undermine the litigants' interest by tainting the 
            proceedings, and in addition would harm the wrongfully 
            excluded juror.
---------------------------------------------------------------------------

                    \38\ 511 U.S. 127 (1994).
---------------------------------------------------------------------------
[P. 1881, add to n.58:]
                See also Miller v. Albright, 523 U.S. 420 (1998) 
            (opinion by Justice Stevens, joined by Justice Rehnquist) 
            (equal protection not violated where paternity of a child of 
            a citizen mother is established at birth, but child of 
            citizen father must establish paternity by age 18).
[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 school.\39\ 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.
---------------------------------------------------------------------------

                    \39\ United States v. Virginia, 518 U.S. 515 (1996).
---------------------------------------------------------------------------
Fundamental Interests: The Political Process
--Apportionment and Districting
[P. 1905, add to n.157 after citation 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 percent intended to 
            preserve political subdivision boundaries).
[P. 1906, add to n.161:]
                Hunt v. Cromartie, 526 U.S. 541 (1999).
[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.\40\ 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,\41\ although three 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.\42\
---------------------------------------------------------------------------

                    \40\ Miller v. Johnson, 515 U.S. 900 (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).
                    \41\ Id.; Shaw v. Reno, 509 U.S. 630 (1993). See 
            also Shaw v. Hunt, 517 U.S. 899 (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).
                    \42\ Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion 
            of Justice O'Connor, joined by Chief Justice Rehnquist and 
            Justice Kennedy) (also involving congressional districts).
---------------------------------------------------------------------------
The Right to Travel
[P. 1911, add new paragraph following heading:]

                     The doctrine of the ``right to travel'' actually 
            encompasses three separate rights, of which two have been 
            notable for the uncertainty of their textual support. The 
            first is the right of a citizen to move freely between 
            States, a right venerable for its longevity, but still 
            lacking a clear doctrinal basis.\43\ The second, expressly 
            addressed by the first sentence of Article IV, provides a 
            citizen of one State who is temporarily visiting another 
            State the ``Privileges and Immunities'' of a citizen of the 
            latter State.\44\ The third is the right of a new arrival to 
            a State, who establishes citizenship in that State, to enjoy 
            the same rights and benefits as other state citizens. This 
            right is most often invoked in challenges to durational 
            residency requirements, which require that persons reside in 
            a State for a specified period of time before taking 
            advantage of the benefits of that State's citizenship.
---------------------------------------------------------------------------

                    \43\ Saenz v. Roe, 526 U.S. 489 (1999). ``For the 
            purposes of this case, we need not identify the source of 
            [the right to travel] in the text of the Constitution. The 
            right of ``free ingress and regress to and from'' 
            neighboring States which was expressly mentioned in the text 
            of the Articles of Confederation, may simply have been 
            ``conceived from the beginning to be a necessary concomitant 
            of the stronger Union the Constitution created.'' Id. at 501 
            (citations omitted). See main text infra n.5 [p. 1912].
                    \44\ Paul v. Virginia, 8 U.S. (Wall) 168, 180 (1868) 
            (``without some provision . . . removing from citizens of 
            each State the disabilities of alienage in other States, and 
            giving them equality of privilege with citizens of those 
            States, the Republic would have constituted little more than 
            a league of States; it would not have constituted the Union 
            which now exists'').
---------------------------------------------------------------------------
--Durational Residency Requirements
[P. 1911, add new paragraph to text following heading:]

                     Challenges to durational residency requirements 
            have traditionally been made under the Equal Protection 
            Clause of the Fourteenth Amendment. In 1999, however, a 
            majority of the Supreme Court approved a doctrinal shift, so 
            that state laws which distinguished between their own 
            citizens based on how long they had been in the State would 
            be evaluated instead under the Privileges or Immunities 
            Clause of the Fourteenth Amendment.\45\ The Court did not, 
            however, question the continuing efficacy of the earlier 
            cases.
---------------------------------------------------------------------------

                    \45\ Saenz v. Roe, 526 U.S. 489, 502-03 (1999).
---------------------------------------------------------------------------
[P. 1913, add to text following sentence containing n.10:]

                     The Privileges or Immunities Clause of the 
            Fourteenth Amendment was the basis for striking down a 
            California law which limited welfare benefits for California 
            citizens who had resided in the State for less than a year 
            to the level of benefits which they would have received in 
            the State of their prior residence.\46\
---------------------------------------------------------------------------

                    \46\ Saenz v. Roe, 526 U.S. 489 (1999).
---------------------------------------------------------------------------
[P. 1913, add to text following n.13:]

                     More recently, the Court has attempted to clarify 
            these cases by distinguishing situations where a state 
            citizen is likely to ``consume'' benefits within a State's 
            borders (such as the provision or welfare) from those where 
            citizens of other States are likely to establish residency 
            just long enough to acquire some portable benefit, and then 
            return to their original domicile to enjoy them (such as 
            obtaining a divorce decree or paying in-state tuition rate 
            for a college education).\47\
---------------------------------------------------------------------------

                    \47\ Saenz v. Roe, 526 U.S. 489, 505 (1999).
---------------------------------------------------------------------------
[P. 1916, add new heading and text following n.24:]
Sexual Orientation

                     In Romer v. Evans,\48\ 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.\49\ The Court also rejected the 
            application of the heightened standard reserved for suspect 
            classes, and sought only to determine whether the 
            legislative classification had a rational relation to a 
            legitimate end.
---------------------------------------------------------------------------

                    \48\ 517 U.S. 620 (1996).
                    \49\ 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.'' \50\ 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.
---------------------------------------------------------------------------

                    \50\ 517 U.S. at 634, quoting Department of 
            Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
---------------------------------------------------------------------------
Poverty and Fundamental Interests: The Intersection of Due 
    Process and Equal Protection
--Criminal Procedure
[P. 1919, add to n.40 after citation to Penson v. Ohio:]
                But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding 
            California law providing that appellate counsel may limit 
            his or her role to filing a brief summarizing the case and 
            record and requesting the court to examine record for non-
            frivolous issues).
--Access to Courts
[P. 1922, add paragraph to text following n.56:]

                     The continuing vitality of Griffin v. Illinois, 
            however, is seen in the case of M.L.B. v. S.L.J.,\51\ where 
            the Court considered whether a State seeking to terminate 
            the parental rights of an indigent must pay for the 
            preparation of the transcript required for pursuing an 
            appeal. Unlike in Boddie, the State, Mississippi, had 
            afforded the plaintiff a trial on the merits, and thus the 
            ``monopolization'' of the avenues of relief alleged in 
            Boddie was not at issue. As in Boddie, however, the Court 
            focused on the substantive due process implications of the 
            state limiting ``[c]hoices about marriage, family life, and 
            the upbringing of children,'' \52\ while also referencing 
            cases establishing a right of equal access to criminal 
            appellate review. Noting that even a petty offender had a 
            right to have the State pay for the transcript needed for an 
            effective appeal,\53\ and that the forced dissolution of 
            parental rights was ``more substantial than mere loss of 
            money,'' \54\ the Court ordered Mississippi to provide the 
            plaintiff the court records necessary to pursue her appeal.
---------------------------------------------------------------------------

                    \51\ 519 U.S. 102 (1996).
                    \52\ 519 U.S. at 106. See Boddie v. Connecticut, 401 
            U.S. 371 (1971).
                    \53\ Mayer v. Chicago, 404 U.S. 189 (1971).
                    \54\ 519 U.S. at 121 (quoting Santosky v. Kramer, 
            455 U.S. 745, 756 (1982)).
---------------------------------------------------------------------------
ENFORCEMENT
--State Action
[P. 1933, delete last full paragraph of section, and 
    substitute the following:]

                     The Court, however, ultimately rejected this 
            expansion of the powers of Congress in United States v. 
            Morrison.\55\ In Morrison, the Court invalidated a provision 
            of the Violence Against Women Act \56\ that established a 
            federal civil remedy for victims of gender-motivated 
            violence. The case involved a university student who brought 
            a civil action against other students who allegedly raped 
            her. The argument was made that there was a pervasive bias 
            against victims of gender-motivated violence in state 
            justice systems, and that the federal remedy would offset 
            and deter this bias. The Court first reaffirmed the state 
            action requirement for legislation passed under the 
            Fourteenth Amendment,\57\ dismissing the dicta in Guest, and 
            reaffirming the precedents of the Civil Rights Cases and 
            United States v. Harris. The Court also rejected the 
            assertion that the legislation was ``corrective'' of bias in 
            the courts, as the suits are not directed at the State or 
            any state actor, but rather at the individuals committing 
            the criminal acts.\58\
---------------------------------------------------------------------------

                    \55\ 120 S. Ct. 1740, 1754-59 (2000).
                    \56\ Pub. L. No. 103-322, Sec. 40302, 108 Stat. 
            1941, 42 U.S.C. Sec. 13981.
                    \57\ 120 S. Ct. at 1756 (quoting Shelley v. Kraemer, 
            334 U.S. 1, 13 (1948), for the proposition that the 
            Amendment ``erects no shield against merely private conduct, 
            however discriminatory or wrongful'').
                    \58\ This holding may have broader significance for 
            federal civil rights law. For instance, 42 U.S.C. 
            Sec. 1985(3) (a civil statute paralleling the criminal 
            statute held unconstitutional in United States v. Harris) 
            lacks a ``color of law'' requirement. Although the 
            requirement was read into it in Collins v. Hardyman, 341 
            U.S. 651 (1951), to avoid constitutional problems, it was 
            read out again in Griffin v. Breckenridge, 403 U.S. 88, 97 
            (1971) (while it might be ``difficult to conceive of what 
            might constitute a deprivation of the equal protection of 
            the laws by private persons . . . there is nothing inherent 
            in the phrase that requires the action working the 
            deprivation to come from the State''). What the unanimous 
            Court held in Griffin was that an ``intent to deprive of 
            equal protection, or equal privileges and immunities, means 
            that there must be some racial, or perhaps otherwise class-
            based, invidiously discriminatory animus behind the 
            conspirators' action.'' Id. at 102. As so construed, the 
            statute was held constitutional as applied in the complaint 
            before the Court on the basis of the Thirteenth Amendment 
            and the right to travel; there was no necessity therefore, 
            to consider Congress' powers under Sec. 5 of the Fourteenth 
            Amendment. Id. at 107.
                    The lower courts have been quite divided with 
            respect to what constitutes a non-racial, class-based 
            animus, and what constitutional protections must be 
            threatened before a private conspiracy can be reached under 
            Sec. 1985(3). See, e.g., Action v. Gannon, 450 F.2d 1227 
            (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 (7th 
            Cir. 1972); Great American Fed. S. & L. Ass'n v. Novotny, 
            584 F.2d 1235 (3d Cir. 1978) (en banc), rev'd, 442 U.S. 366 
            (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en 
            banc). The Court's decision in Morrison, however, appears to 
            preclude the use of Sec. 1985(3) in relation to Fourteenth 
            Amendment rights absent some state action.
---------------------------------------------------------------------------
--Congressional Definition of Fourteenth Amendment Rights
[P. 1936, add to text following n.127:]

                     The case of City of Boerne v. Flores,\59\ however, 
            illustrates that the Court will not always defer to 
            Congress' determination as to what legislation is 
            appropriate to ``enforce'' the provisions of the Fourteenth 
            Amendment. In Flores, the Court held that the Religious 
            Freedom Restoration Act,\60\ which expressly overturned the 
            Court's narrowing of religious protections under Employment 
            Division v. Smith,\61\ exceeded congressional power under 
            section 5 of the Fourteenth Amendment. Although the Court 
            allowed that Congress' power to legislate to deter or remedy 
            constitutional violations may include prohibitions on 
            conduct that is not itself unconstitutional, the Court also 
            held that there must be ``a congruence and proportionality'' 
            between the means adopted and the injury to be remedied.\62\ 
            Unlike the pervasive suppression of the African-American 
            vote in the South which led to the passage of the Voting 
            Rights Act, there was no similar history of religious 
            persecution constituting an ``egregious predicate'' for the 
            far-reaching provision of the Religious Freedom Restoration 
            Act. Also, unlike the Voting Rights Act, the Religious 
            Freedom Restoration Act contained no geographic restrictions 
            or termination dates.\63\
---------------------------------------------------------------------------

                    \59\ 521 U.S. 507 (1997).
                    \60\ Pub. L. No. 103-141, 107 Stat. 1488, 42 U.S.C. 
            Sec. 2000bb et. seq.
                    \61\ 494 U.S. 872 (1990).
                    \62\ 521 U.S. at 533.
                    \63\ 521 U.S. at 532-33. The Court found that the 
            Religious Freedom Restoration Act was ``so far out of 
            proportion to a supposed remedial or preventive object that 
            it cannot be understood as responsive to, or designed to 
            prevent, unconstitutional behavior.'' Id.
---------------------------------------------------------------------------

                     A reinvigorated Eleventh Amendment jurisprudence 
            has led to a spate of decisions applying the principles the 
            Court set forth in Boerne, as litigants precluded from 
            arguing that a State's sovereign immunity has been abrogated 
            under Article I congressional powers \64\ seek alternative 
            legislative authority in section 5. For instance, in Florida 
            Prepaid Postsecondary Education Expense Board v. College 
            Savings Bank,\65\ a bank which had patented a financial 
            method designed to guarantee investors sufficient funds to 
            cover the costs of college tuition sued the State of Florida 
            for administering a similar program, arguing that the 
            State's sovereign immunity had been abrogated by Congress in 
            exercise of its Fourteenth Amendment enforcement power. The 
            Court, however, held that application of the federal patent 
            law to the States was not properly tailored to remedy or 
            prevent due process violations. The Court noted that 
            Congress had identified no pattern of patent infringement by 
            the States, nor a systematic denial of state remedy for such 
            violations such as would constitute a deprivation of 
            property without due process.\66\
---------------------------------------------------------------------------

                    \64\ Seminole Tribe of Florida v. Florida, 517 U.S. 
            44 (1996) (Article I powers may not be used to abrogate a 
            State's Eleventh Amendment immunity, but Fitzpatrick v. 
            Bitzer, 427 U.S. 445 (1976), holding that Congress may 
            abrogate Eleventh Amendment immunity in exercise of 
            Fourteenth Amendment enforcement power, remains good law). 
            See discussion pp. 1533-37.
                    \65\ 527 U.S. 627 (1999).
                    \66\ 527 U.S. at 639-46. See also College Savings 
            Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 
            U.S. 666 (1999) (Trademark Remedy Clarification Act 
            amendment to Lanham Act subjecting States to suits for false 
            advertising is not a valid exercise of Fourteenth Amendment 
            power; neither the right to be free from a business 
            competitor's false advertising nor a more generalized right 
            to be secure in one's business interests qualifies as a 
            ``property'' right protected by the Due Process Clause).
---------------------------------------------------------------------------

                     A similar result was reached regarding the 
            application of the Age Discrimination in Employment Act to 
            state agencies in Kimel v. Florida Board of Regents.\67\ In 
            determining that the Act did not meet the ``congruence and 
            proportionality'' test, the Court focused not just on 
            whether state agencies had engaged in age discrimination, 
            but on whether States had engaged in unconstitutional age 
            discrimination. This was a particularly difficult test to 
            meet, as the Court has generally rejected constitutional 
            challenges to age discrimination by States, finding that 
            there is a rational basis for States to use age as a proxy 
            for other qualities, abilities and characteristics.\68\ 
            Noting the lack of a sufficient legislative record 
            establishing broad and unconstitutional state discrimination 
            based on age, the Court found that the ADEA, as applied to 
            the States, was ``so out of proportion to a supposed 
            remedial or preventive object that it cannot be understood 
            as responsive to or designed to prevent unconstitutional 
            behavior.'' \69\
---------------------------------------------------------------------------

                    \67\ 120 S. Ct. 631 (2000). Again, the issue of the 
            Congress' power under Sec. 5 of the Fourteenth Amendment 
            arose because sovereign immunity prevents private actions 
            against States from being authorized under Article I powers 
            such as the Commerce Clause. 
                    \68\ See, e.g., Gregory v. Ashcroft, 501 U.S. 452 
            (1991) (applying rational basis test to uphold mandatory 
            retirement age of 70 for state judges).
                    \69\ 120 S. Ct. at 647, quoting City of Boerne, 521 
            U.S. at 532.




                           FIFTEENTH AMENDMENT

ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE
Adoption and Judicial Enforcement
--The Judicial View of the Amendment
[P. 1940, add new paragraph to text at end of section:]

                     Although ``the immediate concern of the Amendment 
            was to guarantee to the emancipated slaves the right to 
            vote,'' the Amendment ``is cast in fundamental terms'' that 
            transcend that immediate objective, and ``grants protection 
            to all persons, not just members of a particular race.'' \1\ 
            Moreover, the Court has construed ``race'' broadly to 
            comprehend classifications based on ancestry as well as 
            those based on race.\2\ ``Ancestry can be a proxy for 
            race,'' the Court explained recently, finding such a proxy 
            in Hawaii's limitation of the right to vote in a statewide 
            election for an office responsible for administering a trust 
            for the benefit of persons who can trace their ancestry to 
            Hawaiian inhabitants of 1778.\3\
---------------------------------------------------------------------------

                    \1\ Rice v. Cayetano, 120 S. Ct. 1044, 1054 (2000).
                    \2\ Guinn v. United States, 238 U.S. 347 (1915) 
            (invalidating Oklahoma exception to literacy requirement for 
            any ``lineal descendants'' of persons entitled to vote in 
            1866).
                    \3\ Rice v. Cayetano, 120 S. Ct. 1044, 1055 (2000).
---------------------------------------------------------------------------
Congressional Enforcement
--Federal Remedial Legislation
[P. 1949, add to n.59:]
                In Lopez v. Monterey County, 525 U.S. 266 (1999), the 
            Court reiterated its prior holdings that Congress may 
            exercise its enforcement power based on discriminatory 
            effects, and without any finding of discriminatory intent.




                         TWENTY-FIRST AMENDMENT

Scope of Regulatory Power Conferred upon the States
--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\ 517 U.S. 484 (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\ 517 U.S. at 516 (quoting Capital Cities Cable, 
            Inc., v. Crisp, 467 U.S. 691, 712 (1984)).
                    \4\ 517 U.S. at 515.




   ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE 
                   SUPREME COURT OF THE UNITED STATES

 128. Act of Aug. 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., 514 U.S. 476 
                                    (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., 517 U.S. 843 
                                    (1996).

                                Justices concurring: Thomas, O'Connor, 
                                    Scalia, Souter, Breyer, and Chief 
                                    Justice Rehnquist.

                                Justices dissenting: Kennedy, Ginsburg.

 130. Act of May 11, 1976 (Pub. L. No. 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, 518 U.S. 604 (1996).

                                Justices concurring: Breyer, O'Connor 
                                    and Souter.

                                Justices concurring in part and 
                                    dissenting in part: Kennedy, Scalia, 
                                    Thomas, and Chief Justice Rehnquist.

                                Justices dissenting: Stevens and 
                                    Ginsburg.

 131. Act of Oct. 17, 1988 (Pub. L. No. 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 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, 
                                    517 U.S. 44 (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. No. 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, 513 U.S. 454 
                                    (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. No. 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, 514 U.S. 549 
                                    (1995).

                                Justices concurring: Chief Justice 
                                    Rehnquist, and O'Connor, Scalia, 
                                    Kennedy, and Thomas.

                                Justices dissenting: Stevens, Souter, 
                                    Breyer, and Ginsburg.

 134. Act of Dec. 19, 1991 (Pub. L. No. 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., 514 
                                    U.S. 211 (1995).

                                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. No. 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, 518 U.S. 727 (1996).

                                Justices concurring: Breyer, Stevens, 
                                    O'Connor (Sec. 10(b) only), Kennedy, 
                                    Souter, and Ginsburg.

                                Justices dissenting: Thomas, Scalia, 
                                    O'Connor (Sec. 10(c) only), and 
                                    Chief Justice Rehnquist.

 136. Act of Oct. 30, 1984, (Pub. L. No. 98-608, Sec. 1(4)), 98 Stat. 
        3173, 25 U.S.C. Sec. 2206.
                     Section 207 of the Indian Land Consolidation Act, 
            as amended in 1984, effects an unconstitutional taking of 
            property without compensation by restricting a property 
            owner's right to pass on property to his heirs. The amended 
            section, like an earlier version held unconstitutional in 
            Hodel v. Irving (1987), provides that certain small 
            interests in Indian land will escheat to the tribe upon 
            death of the owner. None of the changes made in 1984 cures 
            the constitutional defect.

                                Babbitt v. Youpee, 519 U.S. 234 (1997).

                                Justices concurring: Ginsburg, O'Connor, 
                                    Scalia, Kennedy, Souter, Thomas, 
                                    Breyer, and Chief Justice Rehnquist.

                                Justice dissenting: Stevens.

 137. Act of Nov. 16, 1993 (Pub. L. No. 103-141), 107 Stat. 1488, 42 
        U.S.C. Sec. Sec. 2000bb to 2000bb-4.
                     The Religious Freedom Restoration Act, which 
            directed use of the compelling interest test to determine 
            the validity of laws of general applicability that 
            substantially burden the free exercise of religion, exceeds 
            congressional power under section 5 of the Fourteenth 
            Amendment. Congress' power under section 5 to ``enforce'' 
            the Fourteenth Amendment by ``appropriate legislation'' does 
            not extend to defining the substance of the Amendment's 
            restrictions. This RFRA appears to do. RFRA ``is so far out 
            of proportion to a supposed remedial or preventive object 
            that it cannot be understood as responsive to, or designed 
            to prevent, unconstitutional behavior.''

                                City of Boerne v. Flores, 521 U.S. 507 
                                    (1997).

                                Justices concurring: Kennedy, Stevens, 
                                    Thomas, Ginsburg, and Chief Justice 
                                    Rehnquist.

                                Justice concurring specially: Scalia.

                                Justices dissenting: O'Connor, Breyer; 
                                    Souter.

 138. Act of Feb. 8, 1996, 110 Stat. 56, 133-34 (Pub. L. No. 104-104, 
        title V, Sec. 502), 47 U.S.C. Sec. Sec. 223(a), 223(d).
                     Two provisions of the Communications Decency Act of 
            1996--one that prohibits knowing transmission on the 
            Internet of obscene or indecent messages to any recipient 
            under 18 years of age, and the other that prohibits the 
            knowing sending or displaying of patently offensive messages 
            in a manner that is available to anyone under 18 years of 
            age--violate the First Amendment.

                                Reno v. ACLU, 521 U.S. 844 (1997).

                                Justices concurring: Stevens, Scalia, 
                                    Kennedy, Souter, Thomas, Ginsburg, 
                                    and Breyer.

                                 Justices concurring in part and 
                                    dissenting in part: O'Connor and 
                                    Chief Justice Rehnquist.

 139. Act of Nov. 30, 1993 (Pub. L. No. 103-159), 107 Stat. 1536.
                     Interim provisions of the Brady Handgun Violence 
            Prevention Act that require state and local law enforcement 
            officers to conduct background checks on prospective handgun 
            purchasers are inconsistent with the Constitution's 
            allocation of power between Federal and State governments. 
            In New York v. United States, 505 U.S. 144 (1992), the Court 
            held that Congress may not compel states to enact or enforce 
            a federal regulatory program, and ``Congress cannot 
            circumvent that prohibition by conscripting the State's 
            officers directly.''

                                Printz v. United States, 521 U.S. 898 
                                    (1997).

                                Justices concurring: Scalia, O'Connor, 
                                    Kennedy, Thomas, and Chief Justice 
                                    Rehnquist.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg, and Breyer.

 140. Act of Nov. 17, 1986 (Pub. L. No. 99-662, title IV, Sec. 1402(a)), 
        26 U.S.C. Sec. Sec. 4461, 4462.
                     The Harbor Maintenance Tax (HMT) violates the 
            Export Clause of the Constitution, Art. I, Sec. 9, cl. 5 to 
            the extent that the tax applies to goods loaded for export 
            at United States ports. The HMT, which requires shippers to 
            pay a uniform charge of 0.125 percent of cargo value on 
            commercial cargo shipped through the Nation's ports, is an 
            impermissible tax rather than a permissible user fee. The 
            value of export cargo does not correspond reliably with 
            federal harbor services used by exporters, and the tax does 
            not, therefore, represent compensation for services 
            rendered.

                                United States v. United States Shoe 
                                    Corp., 523 U.S. 360 (1998).

 141. Act of Oct. 19, 1976 (Pub. L. No. 94-553, Sec. 101(c)), 17 U.S.C. 
        Sec. 504(c).
                     Section 504(c) of the Copyright Act, which 
            authorizes a copyright owner to recover statutory damages, 
            in lieu of actual damages, ``in a sum of not less than $500 
            or more than $20,000 as the court considers just,'' does not 
            grant the right to a jury trial on the amount of statutory 
            damages. The Seventh Amendment, however, requires a jury 
            determination of the amount of statutory damages.

                                Feltner v. Columbia Pictures Television, 
                                    523 U.S. 340 (1998).

 142. Act of Oct. 24, 1992, Title XIX, 106 Stat. 3037 (Pub. L. No. 102-
        486), 26 U.S.C. Sec. Sec. 9701-9722.
                     The Coal Industry Retiree Health Benefit Act of 
            1992 is unconstitutional as applied to the petitioner 
            Eastern Enterprises. Pursuant to the Act, the Social 
            Security Commissioner imposed liability on Eastern for 
            funding health care benefits of retirees from the coal 
            industry who had worked for Eastern prior to 1966. Eastern 
            had transferred its coal-related business to a subsidiary in 
            1965. Four Justices viewed the imposition of liability on 
            Eastern as a violation of the Takings Clause, and one 
            Justice viewed it as a violation of substantive due process.

                                Eastern Enterprises v. Apfel, 524 U.S. 
                                    498 (1998).

                                Justices concurring: O'Connor, Scalia, 
                                    Thomas, and Chief Justice Rehnquist.

                                Justice concurring specially: Kennedy.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg, and Breyer.

 143. Act of April 9, 1996, 110 Stat. 1200 (Pub. L. No. 104-130), 2 
        U.S.C. Sec. Sec. 691 et seq.
                     The Line Item Veto Act, which gives the President 
            the authority to ``cancel in whole'' three types of 
            provisions that have been signed into law, violates the 
            Presentment Clause of Article I, section 7. In effect, the 
            law grants to the President ``the unilateral power to change 
            the text of duly enacted statutes.'' This Line Item Veto Act 
            authority differs in important respects from the President's 
            constitutional authority to ``return'' (veto) legislation: 
            the statutory cancellation occurs after rather than before a 
            bill becomes law, and can apply to a part of a bill as well 
            as the entire bill.

                                Clinton v. City of New York, 524 U.S. 
                                    417 (1998).

                                Justices concurring: Stevens, Kennedy, 
                                    Souter, Thomas, Ginsburg, and Chief 
                                    Justice Rehnquist.

                                Justices dissenting: Scalia, O'Connor, 
                                    and Breyer.

 144. Act of June 19, 1934, ch. 652, 48 Stat. 1088, Sec. 316, 18 U.S.C. 
        Sec. 1304.
                     Section 316 of the Communications Act of 1934, 
            which prohibits radio and television broadcasters from 
            carrying advertisements for privately operated casino 
            gambling regardless of the station's or casino's location, 
            violates the First Amendment's protections for commercial 
            speech as applied to prohibit advertising of private casino 
            gambling broadcast by stations located within a state where 
            such gambling is illegal.

                                Greater New Orleans Broadcasting Ass'n 
                                    v. United States, 527 U.S. 173 
                                    (1999).

                                Justices concurring: Stevens, O'Connor, 
                                    Scalia, Kennedy, Souter, Ginsburg, 
                                    Breyer, and Chief Justice Rehnquist.

                                Justice concurring specially: Thomas.

 145. Act of April 8, 1974, Pub. L. No. 93-259, Sec. Sec. 6(a)(6), 
        6(d)(1), 29 U.S.C. Sec. Sec. 203(x), 216(b).
                     Fair Labor Standards Amendments of 1974 subjecting 
            non-consenting states to suits for damages brought by 
            employees in state courts violates the principle of 
            sovereign immunity implicit in the constitutional scheme. 
            Congress lacks power under Article I to subject non-
            consenting states to suits for damages in state courts.

                                Alden v. Maine, 527 U.S. 706 (1999).

                                Justices concurring: Kennedy, O'Connor, 
                                    Scalia, Thomas, and Chief Justice 
                                    Rehnquist.

                                Justices dissenting: Souter, Stevens, 
                                    Ginsburg, and Breyer.

 146. Act of Oct. 27, 1992, Pub. L. No. 102-542, 15 U.S.C. Sec. 1122.
                     The Trademark Remedy Clarification Act, which 
            provided that states shall not be immune from suit under the 
            Trademark Act of 1946 (Lanham Act) ``under the eleventh 
            amendment . . . or under any other doctrine of sovereign 
            immunity,'' did not validly abrogate state sovereign 
            immunity. Congress lacks power to do so in exercise of 
            Article I powers, and the TRCA cannot be justified as an 
            exercise of power under section 5 of the Fourteenth 
            Amendment. The right to be free from a business competitor's 
            false advertising is not a ``property right'' protected by 
            the Due Process Clause.

                                College Savings Bank v. Florida Prepaid 
                                    Postsecondary Educ. Expense Bd., 527 
                                    U.S. 666 (1999).

                                Justices concurring: Scalia, O'Connor, 
                                    Kennedy, Thomas, and Chief Justice 
                                    Rehnquist.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg, and Breyer.

 147. Act of Oct. 28, 1992, 106 Stat. 4230, Pub. L. No. 102-560, 29 
        U.S.C. Sec. 296.
                     The Patent and Plant Variety Remedy Clarification 
            Act, which amended the patent laws to expressly abrogate 
            states' sovereign immunity from patent infringement suits is 
            invalid. Congress lacks power to abrogate state immunity in 
            exercise of Article I powers, and the Patent Remedy 
            Clarification Act cannot be justified as an exercise of 
            power under section 5 of the Fourteenth Amendment. Section 5 
            power is remedial, yet the legislative record reveals no 
            identified pattern of patent infringement by states and the 
            Act's provisions are ``out of proportion to a supposed 
            remedial or preventive object.''

                                Florida Prepaid Postsecondary Educ. 
                                    Expense Bd. v. College Savings Bank, 
                                    527 U.S. 627 (1999).

                                Justices concurring: Chief Justice 
                                    Rehnquist, and O'Connor, Scalia, 
                                    Kennedy, and Thomas.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg, and Breyer.

 148. Act of April 8, 1974 (Pub. L. No. 93-259, Sec. Sec. 6(d)(1), 
        28(a)(2)), 88 Stat. 61, 74; 29 U.S.C. Sec. Sec. 216(b), 630(b).
                     The Fair Labor Standards Act Amendments of 1974, 
            amending the Age Discrimination in Employment Act to subject 
            states to damages actions in federal courts, exceeds 
            congressional power under section 5 of the Fourteenth 
            Amendment. Age is not a suspect classification under the 
            Equal Protection Clause, and the ADEA is ``so out of 
            proportion to a remedial or preventive object that it cannot 
            be understood as responsive to, or designed to prevent, 
            unconstitutional behavior.''

                                Kimel v. Florida Bd. of Regents, 120 S. 
                                    Ct. 631 (2000).

                                Justices concurring: O'Connor, Scalia, 
                                    Kennedy, Thomas, and Chief Justice 
                                    Rehnquist.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg, and Breyer.

 149. Act of September 13, 1994 (Pub. L. No. 103-322, Sec. 40302), 108 
        Stat. 1941, 42 U.S.C. Sec. 13981.
                     A provision of the Violence Against Women Act that 
            creates a federal civil remedy for victims of gender-
            motivated violence exceeds congressional power under the 
            Commerce Clause and under section 5 of the Fourteenth 
            Amendment. The commerce power does not authorize Congress to 
            regulate ``noneconomic violent criminal conduct based solely 
            on that conduct's aggregate effect on interstate commerce.'' 
            The Fourteenth Amendment prohibits only state action, and 
            affords no protection against purely private conduct. 
            Section 13981, however, is not aimed at the conduct of state 
            officials, but is aimed at private conduct.

                                United States v. Morrison, 120 S. Ct. 
                                    1740 (2000).

                                Justices concurring: Chief Justice 
                                    Rehnquist, and O'Connor, Scalia, 
                                    Kennedy, and Thomas.

                                Justices dissenting: Souter, Breyer, 
                                    Stevens, and Ginsburg.

 150. Act of Feb. 8, 1996 (Pub. L. No. 104-104, Sec. 505), 110 Stat. 
        136, 47 U.S.C. Sec. 561.
                     Section 505 of the Telecommunications Act of 1996, 
            which required cable TV operators that offer channels 
            primarily devoted to sexually oriented programming to 
            prevent signal bleed either by fully scrambling those 
            channels or by limiting their transmission to designated 
            hours when children are less likely to be watching, violates 
            the First Amendment. The provision is content-based, and 
            therefore can only be upheld if narrowly tailored to promote 
            a compelling governmental interest. The measure is not 
            narrowly tailored, since the Government did not establish 
            that the less restrictive alternative found in section 504 
            of the Act--that of scrambling a channel at a subscriber's 
            request--would be ineffective.

                                United States v. Playboy Entertainment 
                                    Group, Inc., 120 S. Ct. 1878 (2000).

                                Justices concurring: Kennedy, Stevens, 
                                    Souter, Thomas, and Ginsburg.

                                Justices dissenting: Scalia, Breyer, 
                                    O'Connor, and Chief Justice 
                                    Rehnquist.

 151. Act of June 19, 1968 (Pub. L. No. 90-351, Sec. 701(a)), 82 Stat. 
        210, 18 U.S.C. Sec. 3501.
                     A section of the Omnibus Crime Control and Safe 
            Streets Act of 1968 purporting to reinstate the 
            voluntariness principle that had governed the 
            constitutionality of custodial interrogations prior to the 
            Court's decision in Miranda v. Arizona, 384 U.S. 486 (1966), 
            is an invalid attempt by Congress to redefine a 
            constitutional protection defined by the Court. The warnings 
            to suspects required by Miranda are constitution-based 
            rules. While the Miranda Court invited a legislative rule 
            that would be ``at least as effective'' in protecting a 
            suspect's right to remain silent, section 3501 is not an 
            adequate substitute.

                                Dickerson v. United States, 120 S. Ct. 
                                    2326 (2000).

                                Justices concurring: Chief Justice 
                                    Rehnquist, and Stevens, O'Connor, 
                                    Kennedy, Souter, and Ginsburg.

                                Justices dissenting: Scalia and Thomas.
                    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 and 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, Inc. v. Department of Envtl. Quality, 511 
        U.S. 93 (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, 511 U.S. 641 (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 aggregate 
            tax burden on interstate commerce than on intrastate 
            commerce.

 1095. Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (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, 512 U.S. 415 (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, 512 U.S. 687 
        (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.

 1099. American Airlines v. Wolens, 513 U.S. 219 (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, 514 U.S. 334 (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, 514 U.S. 779 (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, 515 U.S. 450 (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 
            fall--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, 515 U.S. 557 (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.

 1104. Miller v. Johnson, 515 U.S. 900 (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, O'Connor, 
                                    Scalia, Thomas, and Chief Justice 
                                    Rehnquist.

                                Justices dissenting: Stevens Ginsburg, 
                                    Breyer, and Souter.

 1105. Fulton Corp. v. Faulkner, 516 U.S. 325 (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 v. Nelson, 517 U.S. 25 (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, 517 U.S. 484 (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, 517 U.S. 620 (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.

                                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, 517 U.S. 681 (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, 517 U.S. 899 (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, 517 U.S. 952 (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, 518 U.S. 515 (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.

 1113. M.L.B. v. S.L.J., 519 U.S. 102 (1996).
                     Mississippi statutes that condition appeals from 
            trial court decrees terminating parental rights on the 
            affected parent's ability to pay for preparation of a trial 
            transcript violate the Equal Protection and Due Process 
            Clauses of the Fourteenth Amendment. Decrees terminating 
            parental rights belong in the same category of cases, 
            starting with Griffin v. Illinois, 351 U.S. 12 (1956), in 
            which the Court has ruled that the State's adverse action 
            against an individual is so devastating that access to 
            appellate review may not be made contingent upon ability to 
            pay.

                                Justices concurring: Ginsburg, Stevens, 
                                    O'Connor, Souter, and Breyer.

                                Justice concurring specially: Kennedy.

                                Justices dissenting: Chief Justice 
                                    Rehnquist, and Thomas, and Scalia.

 1114. Lynce v. Mathis, 519 U.S. 433 (1997).
                     A Florida statute canceling early release credits 
            awarded to prisoners as a result of prison overcrowding 
            violates the Ex Post Facto Clause, Art. I, Sec. 10, cl. 1, 
            as applied to a prisoner who had already been awarded the 
            credits and released from custody. The cancellation of early 
            release credits met the two-part test for an ex post facto 
            law: it was ``clearly retrospective'' and it disadvantaged 
            the petitioner by lengthening his period of incarceration.

                                Justices concurring: Stevens, O'Connor, 
                                    Kennedy, Souter, Ginsburg, Breyer, 
                                    and Chief Justice Rehnquist.

                                Justices concurring specially: Thomas, 
                                    and Scalia.

 1115. Chandler v. Miller, 520 U.S. 305 (1997).
                     A Georgia statute requiring that candidates for 
            state office certify that they have passed a drug test 
            effects a ``search'' that is plainly not tied to 
            individualized suspicion, and does not fit within the 
            ``closely guarded category of constitutionally permissible 
            suspicionless searches,'' and hence violates the Fourth 
            Amendment. Georgia has failed to establish existence of a 
            ``special need, beyond the normal need for law 
            enforcement,'' that can justify such a search.

                                Justices concurring: Ginsburg, Stevens, 
                                    O'Connor, Scalia, Kennedy, Souter, 
                                    Thomas, and Breyer.

                                Justice dissenting: Chief Justice 
                                    Rehnquist.

 1116. Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564 (1997).
                     Maine's property tax law, which contains an 
            exemption for charitable institutions but limits that 
            exemption to institutions serving principally Maine 
            residents, violates the ``dormant'' Commerce Clause as 
            applied to deny exemption status to a nonprofit corporation 
            that operates a summer camp for children, most of whom are 
            not Maine residents. The nonprofit character of the 
            enterprise does not exclude it from protection. 
            Protectionism, whether targeted at for-profit or not-for-
            profit entities, is prohibited.

                                Justices concurring: Stevens, O'Connor, 
                                    Kennedy, Souter, and Breyer.

                                Justices dissenting: Scalia, Thomas, 
                                    Ginsburg, and Chief Justice 
                                    Rehnquist.

 1117. Foster v. Love, 522 U.S. 67 (1997).
                     A Louisiana statute that provides for an ``open 
            primary'' in October for election of Members of Congress and 
            that provides that any candidate receiving a majority of the 
            vote in that primary ``is elected,'' conflicts with the 
            federal law, 2 U.S.C. Sec. Sec. 1 and 7, that provides for a 
            uniform federal election day in November, and is void to the 
            extent of conflict. ``[A] contested selection of candidates 
            for a congressional office that is concluded as a matter of 
            law before the federal election day . . . clearly violates 
            Sec. 7.''

 1118. Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998).
                     A New York law that effectively denies only 
            nonresident taxpayers an income tax deduction for alimony 
            paid violates the Privileges or Immunities Clause of Art. 
            IV, Sec. 2. New York did not adequately justify its failure 
            to treat resident and nonresident taxpayers with substantial 
            equality.

                                Justices concurring: O'Connor, Stevens, 
                                    Scalia, Souter, Thomas, and Breyer.

                                Justices dissenting: Ginsburg, Kennedy, 
                                    and Chief Justice Rehnquist.

 1119. Knowles v. Iowa, 525 U.S. 113 (1998).
                     An Iowa statute authorizing law enforcement 
            officers to conduct a full-blown search of an automobile 
            when issuing a traffic citation violates the Fourth 
            Amendment. The rationales that justify a search incident to 
            arrest do not justify a similar search incident to a traffic 
            citation.

 1120. Buckley v. American Constitutional Law Found., 525 U.S. 182 
        (1999).
                     Three conditions that Colorado placed on the 
            petition process for ballot initiatives--that petition 
            circulators be registered voters, that they wear 
            identification badges, and that initiative sponsors report 
            the names and addresses of circulators and the amounts paid 
            to each--impermissibly restrict political speech in 
            violation of the First and Fourteenth Amendments.

                                Justices concurring: Ginsburg, Stevens, 
                                    Scalia, Kennedy, and Souter.

                                Justice concurring specially: Thomas.

                                Justices concurring in part and 
                                    dissenting in part: O'Connor, 
                                    Souter, and Chief Justice Rehnquist.

 1121. South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999).
                     Alabama's franchise tax law discriminates against 
            foreign corporations in violation of the Commerce Clause. 
            The law establishes a domestic corporation's tax base as the 
            par value of its capital stock, a value that the corporation 
            may set at whatever level it chooses. The tax base of a 
            foreign corporation, on the other hand, contains balance 
            sheet items that the corporation cannot so manipulate.

 1122. Saenz v. Roe, 526 U.S. 489 (1999).
                     A provision of California's Welfare and 
            Institutions Code limiting new residents, for the first year 
            they live in California, to the level of welfare benefits 
            that they would have received in the state of their prior 
            residence abridges the right to travel in violation of the 
            Fourteenth Amendment.

                                Justices concurring: Stevens, O'Connor, 
                                    Scalia, Kennedy, Souter, Ginsburg, 
                                    and Breyer.

                                Justices dissenting: Chief Justice 
                                    Rehnquist, and Thomas.

 1123. Rice v. Cayetano, 120 S. Ct. 1044 (2000).
                     A provision of the Hawaii Constitution restricting 
            the right to vote for trustees of the Office of Hawaiian 
            Affairs to persons who are descendants of people inhabiting 
            the Hawaiian Islands in 1778 is a race-based voting 
            qualification that violates the Fifteenth Amendment. 
            Ancestry can be--and in this case is--a proxy for race.

                                Justices concurring: Kennedy, O'Connor, 
                                    Scalia, Thomas, and Chief Justice 
                                    Rehnquist.

                                Justices concurring specially: Breyer 
                                    and Souter.

                                Justices dissenting: Stevens and 
                                    Ginsburg.

 1124. United States v. Locke, 120 S. Ct. 1135 (2000).
                     Four Washington State regulations governing oil 
            tanker operations and manning are preempted. Primarily 
            through Title II of the Ports and Waterways Safety Act of 
            1972, Congress has occupied the field of regulation of 
            general seaworthiness of tankers and their crews, and there 
            is no room for these state regulations imposing training and 
            English language proficiency requirements on crews and 
            imposing staffing requirements for navigation watch. State 
            reporting requirements applicable to certain marine 
            incidents are also preempted.

 1125. Carmell v. Texas, 120 S. Ct. 1620 (2000).
                     A Texas law that eliminated a requirement that the 
            testimony of a sexual assault victim age 14 or older must be 
            corroborated by two other witnesses violates the Ex Post 
            Facto Clause of Art. I, Sec. 10 as applied to a crime 
            committed while the earlier law was in effect. So applied, 
            the law falls into the category of an ex post facto law that 
            requires less evidence in order to convict. Under the old 
            law, the petitioner could have been convicted only if the 
            victim's testimony had been corroborated by two witnesses, 
            while under the amended law the petitioner was convicted on 
            the victim's testimony alone.

                                Justices concurring: Stevens, Scalia, 
                                    Souter, Thomas, and Breyer.

                                Justices dissenting: Ginsburg, O'Connor, 
                                    Kennedy, and Chief Justice 
                                    Rehnquist.

 1126. Troxel v. Granville, 120 S. Ct. 2054 (2000).
                     A Washington State law allowing ``any person'' to 
            petition a court ``at any time'' to obtain visitation rights 
            whenever visitation ``may serve the best interests'' of a 
            child is unconstitutional as applied to an order requiring a 
            parent to allow her child's grandparents more extensive 
            visitation than the parent wished. Because no deference was 
            accorded to the parent's wishes, the parent's due process 
            liberty interest in making decisions concerning her child's 
            care, custody, and control was violated.

                                Justices concurring: O'Connor, Ginsburg, 
                                    Breyer, and Chief Justice Rehnquist.

                                Justices concurring specially: Souter 
                                    and Thomas.

                                Justices dissenting: Stevens, Scalia, 
                                    and Kennedy.

 1127. Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
                     A New Jersey ``hate crime'' statute that allows a 
            judge to extend a sentence upon finding by a preponderance 
            of the evidence that the defendant, in committing a crime 
            for which he has been found guilty, acted with a purpose to 
            intimidate because of race, violates the Fourteenth 
            Amendment's Due Process Clause and the Sixth Amendment's 
            requirements of speedy and public trial by an impartial 
            jury. Any fact that increases the penalty for a crime beyond 
            the prescribed statutory maximum must be submitted to a jury 
            and established beyond a reasonable doubt.

                                Justices concurring: Stevens, Scalia, 
                                    Souter, Thomas, and Ginsburg.

                                Justice concurring specially: Thomas.

                                Justices dissenting: O'Connor, Kennedy, 
                                    Breyer, and Chief Justice Rehnquist.

 1128. California Democratic Party v. Jones, 120 S. Ct. 2402 (2000).
                     California's ``blanket primary'' law violates the 
            First Amendment associational rights of political parties. 
            The law lists all candidates on one ballot and allows 
            primary voters to choose freely among candidates without 
            regard to party affiliation. The law ``adulterate[s]'' a 
            party's candidate-selection process by forcing the party to 
            open up that process to persons wholly unaffiliated with the 
            party, and is not narrowly tailored to serve a compelling 
            state interest.

                                Justices concurring: Scalia, O'Connor, 
                                    Kennedy, Souter, Thomas, Breyer, and 
                                    Chief Justice Rehnquist.

                                Justices dissenting: Stevens and 
                                    Ginsburg.

 1129. Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000).
                     Application of New Jersey's public accommodations 
            law to require the Boy Scouts of America to admit an avowed 
            homosexual as a member and assistant scout master violates 
            the organization's First Amendment associational rights. The 
            general mission of the Scouts, to instill values in young 
            people, is expressive activity entitled to First Amendment 
            protection, and requiring the Scouts to admit a gay scout 
            leader would contravene the Scouts' asserted policy 
            disfavoring homosexual conduct.

                                Justices concurring: Chief Justice 
                                    Rehnquist, and O'Connor, Scalia, 
                                    Kennedy, and Thomas.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg, and Breyer.

 1130. Stenberg v. Carhart, 120 S. Ct. 2597 (2000).
                     Nebraska's statute criminalizing the performance of 
            ``partial birth abortions'' is unconstitutional under 
            principles set forth in Roe v. Wade and Planned Parenthood 
            v. Casey. The statute lacks an exception for instances in 
            which the banned procedure is necessary to preserve the 
            health of the mother, and, because it applies to the 
            commonplace dilation and evacuation procedure as well as to 
            the dilation and extraction method, imposes an ``undue 
            burden'' on a woman's right to an abortion.

                                Justices concurring: Breyer, Stevens, 
                                    O'Connor, Souter, and Ginsburg.

                                Justices dissenting: Chief Justice 
                                    Rehnquist, and Scalia, Kennedy, and 
                                    Thomas.




                    ORDINANCES HELD UNCONSTITUTIONAL

 125. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 
        (1993).
                     Cincinnati'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).
                     Hialeah, Florida 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, 511 U.S. 383 (1994).
                     Clarkstown, New York ``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, 512 U.S. 43 (1994).
                     An ordinance of the City of Ladue, Missouri, 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.''

 129. City of Chicago v. Morales, 527 U.S. 41 (1999).
                     Chicago's Gang Congregation Ordinance, which 
            prohibits ``criminal street gang members'' from 
            ``loitering'' with one another or with other persons in any 
            public place after being ordered by a police officer to 
            disperse, violates the Due Process Clause of the Fourteenth 
            Amendment. The ordinance violates the requirement that a 
            legislature establish minimal guidelines for law 
            enforcement.

                                Justices concurring: Stevens, O'Connor, 
                                    Kennedy, Souter, Ginsburg, and 
                                    Breyer.

                                Justices dissenting: Scalia, Thomas, and 
                                    Chief Justice Rehnquist.
        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. 738 (1994).                  U.S. 222 (1980).
*   207. Hubbard v. United States, 514     United States v. Bramblett, 
        U.S. 695 (1995).                  348 U.S. 503 (1955).
*   208. Adarand Constructors, Inc. v.     Metro Broadcasting, Inc. v. 
        Pena, 515 U.S. 200 (1995).        FCC, 497 U.S. 547 (1990);
                                           Fullilove v. Klutznick, 448 
                                          U.S. 448 (1990) (in part).
*   209. United States v. Gaudin, 515      Sinclair v. United States, 
        U.S. 506 (1995).                  279 U.S. 263 (1929).
*   210. Fulton Corp. v. Faulkner, 516     Darnell v. Indiana, 226 U.S. 
        U.S. 325 (1996).                  390 (1912).
*   211. Seminole Tribe of Florida v.      Pennsylvania v. Union Gas 
        Florida, 517 U.S. 44 (1996).      Co., 491 U.S. 1 (1989).
*   212. 44 Liquormart, Inc. v. Rhode      California v. LaRue, 409 U.S. 
        Island, 517 U.S. 484 (1996).      109 (1972) (in part);
                                           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).
*   213. Agostini v. Felton, 521 U.S.      Aguilar v. Felton, 473 U.S. 
        203 (1997).                       402 (1985);
                                           Grand Rapids School Dist. v. 
                                          Ball, 473 U.S. 373 (1985) (in 
                                          part).
*   214. State Oil Co. v. Khan, 522        Albrecht v. Herald Co., 390 
        U.S. 3 (1997).                    U.S. 145 (1968).
*   215. Hudson v. United States, 522      United States v. Halper, 490 
        U.S. 93 (1997).                   U.S. 435 (1989).
*   216. Hohn v. United States, 524        House v. Mayo, 324 U.S. 42 
        U.S. 236 (1998).                  (1945).
*   217.Minnesota v. Mille Lacs Band       Ward v. Race Horse, 163 U.S. 
        of Chippewa Indians, 526 U.S.     504 (1896) (in part).
        172 (1999).
*   218.College Savings Bank v.            Parden v. Terminal Ry., 377 
        Florida Prepaid Postsecondary     U.S. 184 (1964) (in part).
        Educ. Expense Bd., 527 U.S. 
        666 (1999).
*   219. Mitchell v. Helms, 120 S. Ct.     Meek v. Pittenger, 421 U.S. 
        2530 (2000).                      349 (1975);
                                           Wolman v. Walter, 433 U.S. 
                                          229 (1977).
                             TABLE OF CASES

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)  ...... 71, 73, 
                                                           149, 162, 171
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)  ................ 37
Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971)  ................... 143
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)  ...... 39, 137, 
                                                                     171
Agostini v. Felton, 521 U.S. 203 (1997)  ........... 39, 49, 54, 55, 171
Aguilar v. Felton, 473 U.S. 402 (1985)  ..................... 53-56, 171
Albrecht v. Herald Co., 390 U.S. 145 (1968)  ....................... 171
Albright v. Oliver, 510 U.S. 266 (1994)  ........................... 133
Alden v. Maine, 527 U.S. 706 (1999)  ................ 121, 122, 124, 156
Alexander v. United States, 509 U.S. 544 (1993)  ................ 63, 76
Allen v. Wright, 468 U.S. 737 (1984)  ............................... 33
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)  ....... 8, 16
Almendarez-Torres v. United States, 523 U.S. 224 (1998)  ....... 96, 135
American Airlines v. Wolens, 513 U.S. 219 (1995)  .............. 13, 160
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)  ..... 131, 
                                                                     136
Andresen v. Maryland, 427 U.S. 463 (1976)  .......................... 98
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)  ............... 135, 167
Arave v. Creech, 507 U.S. 463 (1993)  .............................. 116
Arizona Dep't of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999)  
 .................................................................... 48
Arizona v. Evans, 514 U.S. 1 (1995)  ................................ 92
Arizonans For Official English v. Arizona, 520 U.S. 43 (1997)  ...... 37
Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998)   
                                                                      79
Associated Industries v. Lohman, 511 U.S. 641 (1994)  .............. 159
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)  ............ 124
Austin v. United States, 509 U.S. 602 (1993)  ...................... 115
Babbitt v. Youpee, 519 U.S. 234 (1997)  ....................... 105, 153
Baldasar v. Illinois, 446 U.S. 222 (1980)  ......................... 171
Baltimore Dep't of Social Servs. v. Bouknight, 493 U.S. 549 (1990) 
  ................................................................... 98
Barclays Bank v. Franchise Tax Bd. of California, 512 U.S. 298 
 (1994)  ............................................................ 13
Barnett Bank v. Nelson, 517 U.S. 25 (1996)  ................ 15, 16, 162
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)  ................. 72
Bennett v. Spear, 520 U.S. 154 (1997)  .......................... 34, 36
Bennis v. Michigan, 516 U.S. 442 (1996)  ........................... 128
Blodgett v. Holden, 275 U.S. 142 (1927)  ........................... 102
BMW v. Gore, 517 U.S. 559 (1996)  .................................. 131
Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996)  ......... 65, 66
Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 
 (1994)  ............................................... 49, 50, 60, 160
Board of Regents of the Univ. of Wisconsin System v. Southworth, 
 120 S. Ct. 1346 (2000)  ............................................ 64
Boddie v. Connecticut, 401 U.S. 371 (1971)  ........................ 142
Boggs v. Boggs, 520 U.S. 833 (1997)  ............................. 14-16
Bond v. United States, 120 S. Ct. 1462 (2000)  .................. 87, 89
Bousley v. Brooks, 523 U.S. 614 (1998)  ......................... 37, 42
Bowen v. Kendrick, 487 U.S. 589 (1988)  ............................. 54
Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000)  ......... 64, 167
Bradfield v. Roberts, 175 U.S. 291 (1899)  .......................... 54
Braunfeld v. Brown, 366 U.S. 599 (1961)  ............................ 50
Breard v. Greene, 523 U.S. 371 (1998)  ............................. 121
Brecht v. Abrahamson, 507 U.S. 619 (1993)  ..................... 98, 117
Buchanan v. Angelone, 522 U.S. 269 (1998)  ......................... 116
Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999) 
  .......................................................... 67, 82, 165
Bush v. Vera, 517 U.S. 952 (1996)  ............................ 140, 163
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958)  .......... 41
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994)   
                                                              9, 12, 169
Calderon v. Coleman, 525 U.S. 141 (1998)  .......................... 117
California Democratic Party v. Jones, 120 S. Ct. 2402 (2000)  ...... 167
California Dep't of Corrections v. Morales, 514 U.S. 499 (1995)   
                                                                      20
California Div. of Labor Stds. Enforcement v. Dillingham Constr., 
 Inc., 519 U.S. 316 (1997)  ..................................... 14, 15
California v. Deep Sea Research, Inc., 523 U.S. 491 (1998)  ........ 121
California v. LaRue, 409 U.S. 109 (1972)  ..................... 149, 171
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)  ............ 18
Campbell v. Louisiana, 523 U.S. 392 (1998)  .................... 34, 137
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 
 (1997)  ................................................ 9, 11, 20, 164
Cantwell v. Connecticut, 310 U.S. 296 (1940)  ....................... 50
Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691 (1984)  ......... 149
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 
 (1995)  .................................................... 50, 59, 79
Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993)   
                                                                      37
Carmell v. Texas, 120 S. Ct. 1620 (2000)  ...................... 20, 166
Carter v. Carter Coal Co., 298 U.S. 238 (1936)  ...................... 6
CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973)  .................. 63
Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948)  ....... 10
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S. 
 557 (1980)  ..................................................... 70-73
Central State Univ. v. American Ass'n of Univ. Professors, 526 
 U.S. 124 (1999)  .................................................. 137
Chandler v. Miller, 520 U.S. 305 (1997)  ....................... 92, 164
Chapman v. California, 386 U.S. 18 (1967)  ..................... 98, 117
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 
 (1993)  ............................................... 50, 60, 61, 169
City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)  ......... 82
City of Boerne v. Flores, 521 U.S. 507 (1997)  ........ 61, 62, 144, 153
City of Chicago v. International Coll. of Surgeons, 522 U.S. 156 
 (1998)  ............................................................ 39
City of Chicago v. Morales, 527 U.S. 41 (1999)  ............... 133, 169
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) 
  .............................................................. 70, 169
City of Ladue v. Gilleo, 512 U.S. 43 (1994)  ................... 83, 169
City of Los Angeles v. Preferred Communications, 476 U.S. 488 
 (1986)  ............................................................ 74
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 
 687 (1999)  ....................................................... 105
City of Newport v. Iacobucci, 479 U.S. 92 (1986)  .................. 171
City of West Covina v. Perkins, 525 U.S. 234 (1999)  ............... 132
Civil Rights Cases, 109 U.S. 3 (1883)  ............................. 143
Clements v. Fashing, 457 U.S. 957 (1982)  ........................... 34
Clinton v. City of New York, 524 U.S. 417 (1998)  ........ 2, 5, 35, 155
Clinton v. Jones, 520 U.S. 681 (1997)  .............................. 26
Coleman v. Miller, 307 U.S. 433 (1939)  ............................. 35
College Savings Bank v. Florida Prepaid Postsec. Educ. Expense 
 Bd., 527 U.S. 666 (1999)  .......................... 123, 145, 156, 171
Collins v. Hardyman, 341 U.S. 651 (1951)  .......................... 143
Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996)   
                                                             39, 66, 151
Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973)  ... 52, 53, 57
Concrete Pipe & Products v. Construction Laborers Pension Trust, 
 508 U.S. 602
  (1993)  .......................................................... 103
Conn v. Gabbert, 526 U.S. 286 (2000)  .............................. 128
Cooper v. Oklahoma, 517 U.S. 348 (1996)  ........................... 136
County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 
 (1989)  ........................................................ 49, 50
County of Sacramento v. Lewis, 523 U.S. 833 (1998)  ................ 127
Crosby v. National Foreign Trade Council, 120 S. Ct. 2288 (2000)  
                                                                      17
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)  ........ 14
Dalton v. Specter, 511 U.S. 462 (1994)  ......................... 24, 26
Darnell v. Indiana, 226 U.S. 390 (1912)  ........................... 171
Davis v. United States, 512 U.S. 452 (1994)  ....................... 101
De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806 
 (1997)  ............................................................ 14
Delaware v. Prouse, 440 U.S. 648 (1979)  ............................ 90
Dellmuth v. Muth, 491 U.S. 223 (1989)  ........................ 123, 124
Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727 (1996)  ..... 75, 
                                                                 76, 153
Department of Agriculture v. Moreno, 413 U.S. 528 (1973)  .......... 142
Department of Commerce v. United States House of Representatives, 
 525 U.S. 316 (1999)  ............................................... 32
Department of Taxation & Finance v. Milhelm Attea & Bros., 512 
 U.S. 61
  (1994)  ..........................................................  17
Department of Treasury v. Fabe, 508 U.S. 491 (1993)  ........... 13, 159
Dickerson v. United States, 120 S. Ct. 2326 (2000)  ............ 99, 158
District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 
 125 (1992)  ........................................................ 13
Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996)  ... 16, 163
Doe v. United States, 487 U.S. 201 (1988)  .......................... 98
Dolan v. City of Tigard, 512 U.S. 374 (1994)  ................. 104, 105
Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972)  ............... 143
Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996)  ................... 44
Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)  ... 20, 103, 105, 155
Edenfield v. Fane, 507 U.S. 761 (1993)  .................... 69, 70, 159
Edmond v. United States, 520 U.S. 651 (1997)  ....................... 25
Employees of the Dep't of Pub. Health and Welfare v. Department of 
 Pub. Health and Welfare, 411 U.S. 279 (1973)  ..................... 124
Employment Div. v. Smith, 494 U.S. 872 (1990)  ......... 51, 61, 62, 144
Erie v. Pap's A.M., 120 S. Ct. 1382 (2000)  ......................... 78
Estelle v. Smith, 451 U.S. 454 (1981)  .............................. 97
Evans v. Romer, 854 P.2d 1270 (Colo. 1993)  ........................ 141
Ex parte Virginia, 100 U.S. 339 (1880)  ............................. 63
Farmer v. Brennan, 511 U.S. 825 (1994)  ............................ 118
FCC v. Beach Communications, 508 U.S. 307 (1993)  ............. 102, 137
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)  ................ 75, 77
FDIC v. Meyer, 510 U.S. 471 (1994)  ................................. 40
FEC v. Akins, 524 U.S. 11 (1998)  ........................... 32, 34, 36
Felker v. Turpin, 518 U.S. 651 (1996)  ...................... 31, 41, 43
Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998)  ..... 113, 
                                                                     155
Fisher v. United States, 425 U.S. 391 (1976)  ....................... 98
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)  ..................  123, 144
Flippo v. West Virginia, 120 S. Ct. 7 (1999)  ......................  90
Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)  .......... 68, 73
Florida Prepaid Postsec. Educ. Expense Bd. v. College Savings 
 Bank, 527 U.S. 627 (1999)  .............................. 123, 144, 156
Florida v. J.L., 120 S. Ct. 1375 (2000)  ............................ 89
Florida v. White, 526 U.S. 559 (1999)  .............................. 91
Foster v. Love, 522 U.S. 67 (1997)  ................................ 165
Foucha v. Louisiana, 504 U.S. 71 (1992)  ........................... 130
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)  .................. 15
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693 
 (2000)  ........................................................ 33, 37
Frisby v. Schultz, 487 U.S. 474 (1988)  ............................. 80
Fullilove v. Klutznick, 448 U.S. 448 (1990)  .................. 138, 171
Fulton Corp. v. Faulkner, 516 U.S. 325 (1996)  ........ 10, 11, 162, 171
Furman v. Georgia, 408 U.S. 238 (1972)  .............................. 1
Gardner v. Toilet Goods Ass'n, 387 U.S. 167 (1967)  ................. 37
Garner v. Jones, 120 S. Ct. 1362 (2000)  ............................ 20
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996)  ..... 41, 
                                                                     113
Geier v. American Honda Motor Co., 120 S. Ct. 1913 (2000)  .......... 15
General Motors Corp. v. Tracy, 519 U.S. 278 (1997)  ................. 11
Gilbert v. Homar, 520 U.S. 924 (1997)  ............................. 132
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)   
                                                                      63
Goldberg v. Sweet, 488 U.S. 252 (1989)  ............................. 10
Gooding v. United States, 416 U.S. 430 (1974)  ...................... 88
Grady v. Corbin, 495 U.S. 508 (1990)  .......................... 97, 171
Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985)  ..... 50, 52-55, 
                                                                     171
Gray v. Maryland, 523 U.S. 185 (1998)  ............................. 110
Gray v. Netherland, 518 U.S. 152 (1996)  ........................ 37, 42
Great American Fed. S. & L. Ass'n v. Novotny, 584 F.2d 1235 (3d 
 Cir. 1978)  ....................................................... 143
Greater New Orleans Broadcasting Ass'n v. United States,
  527 U.S. 173 (1999)  ..................................... 71, 73, 155
Green v. French, 143 F.3d 865 (4th Cir. 1998)  ...................... 44
Gregory v. Ashcroft, 501 U.S. 452 (1991)  .......................... 145
Griffin v. Breckenridge, 403 U.S. 88 (1971)  ....................... 143
Griffin v. Illinois, 351 U.S. 12 (1956)  ........................... 164
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995)  ...... 40
Guaranty Trust Co. v. York, 326 U.S. 99 (1945)  ..................... 41
Guinn v. United States, 238 U.S. 347 (1915)  ....................... 147
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)  .............. 27
Hagen v. Utah, 510 U.S. 399 (1994)  ................................. 17
Hall v. Washington, 106 F.3d 742 (7th Cir. 1997)  ................... 44
Hanlon v. Berger, 526 U.S. 808 (1999)  .............................. 89
Hans v. Louisiana, 134 U.S. 1 (1890)  .............................. 122
Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993)  ........... 38
Harris v. Alabama, 513 U.S. 504 (1995)  ............................ 116
Heiner v. Donnan, 285 U.S. 312 (1932)  ............................. 102
Helling v. McKinney, 509 U.S. 25 (1993)  ........................... 118
Herrera v. Collins, 506 U.S. 390 (1993)  ....................... 42, 117
Hetzel v. Prince William County, 523 U.S. 208 (1998)  .............. 113
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)  ....................... 85
Hill v. Colorado, 120 S. Ct. 2480 (2000)  ........................... 81
Hill v. Lockhart, 474 U.S. 52 (1985)  .............................. 111
Hodel v. Irving, 481 U.S. 704 (1987)  ......................... 105, 153
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 
 (1981)  ........................................................... 107
Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S. 96 
 (1989)  ........................................................... 123
Hohn v. United States, 524 U.S. 236 (1998)  ................ 39, 43, 171
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994)  ................ 131, 160
Hopkins v. Reeves, 524 U.S. 88 (1998)  ............................. 116
House v. Mayo, 324 U.S. 42 (1945)  ................................. 171
Hubbard v. United States, 514 U.S. 695 (1995)  ..................... 171
Hudson v. United States, 522 U.S. 93 (1997)  ....................... 171
Hunt v. Cromartie, 526 U.S. 541 (1999)  ............................ 139
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S. Ct. 1022 
 (2000)  ............................................................ 10
Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995)  ... 64, 74, 81, 
                                                                     161
Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994)  .......... 69
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997)  ............ 124, 125
Illinois v. Wardlow, 120 S. Ct. 673 (2000)  ......................... 89
In re Winship, 397 U.S. 358 (1970)  ................................ 109
In re Young, 141 F.3d 854 (8th Cir. 1998)  .......................... 62
INS v. Chadha, 462 U.S. 919 (1983)  .................................. 5
International Union, UMW v. Bagwell, 512 U.S. 821 (1994)  ...... 30, 31, 
                                                                     109
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60 (1993)  ...... 9, 
                                                                  12, 21
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)  ............... 138
Jefferson County v. Acker, 527 U.S. 423 (1999)  ..................... 48
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 
 U.S. 86 (1993)...................................................... 13
Johnson v. Texas, 509 U.S. 350 (1993)  ............................. 116
Jones v. United States, 120 S. Ct. 1904 (2000)  ................... 6, 8
Jones v. United States, 357 U.S. 493 (1958)  ........................ 88
Kansas v. Hendricks, 521 U.S. 346 (1997)  ...................... 95, 129
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 
 (1987)  ........................................................... 107
Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000)  ...... 123, 124, 
                                                                145, 157
Knowles v.Iowa, 525 U.S. 113 (1998)  ....................... 90, 91, 165
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994)  ............ 39
Kolender v. Lawson, 461 U.S. 352 (1983)  ........................... 133
Kotteakos v. United States, 328 U.S. 750 (1946)  ............... 98, 117
Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993)  
                                                                  59, 79
Lambrix v. Singletary, 520 U.S. 518 (1997)  ..................... 37, 42
Leathers v. Medlock, 499 U.S. 439 (1991)  ........................... 74
Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995)  ....... 63
Lee v. Weisman, 505 U.S. 577 (1992)  ............................ 49, 50
Lemon v. Kurtzman, 403 U.S. 602 (1971)  .................. 52-56, 58, 59
Lewis v. Casey, 518 U.S. 343 (1996)  ........................... 32, 136
Lewis v. United States, 518 U.S. 322 (1996)  ....................... 109
Lilly v. Virginia, 527 U.S. 116 (1999)  ............................ 110
Linda R. S. v. Richard D., 410 U.S. 614 (1973)  ..................... 33
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)  ....................... 44
Linmark Associates v. Township of Willingboro, 431 U.S. 85 (1977)  
 .................................................................... 72
Livadas v. Bradshaw, 512 U.S. 107 (1994)  ........................... 17
Lockhart v. Fretwell, 506 U.S. 364 (1993)  ......................... 111
Lopez v. Monterey County, 525 U.S. 266 (1999)  ..................... 147
Loving v. United States, 517 U.S. 748 (1996)  ................ 1, 18, 23
Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990)  .............. 37
Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998)  ..... 45, 
                                                                     165
Lynce v. Mathis, 519 U.S. 433 (1997)  .......................... 20, 164
Lynch v. Donnelly, 465 U.S. 668 (1984)  ............................. 50
M.L.B. v. S.L.J., 519 U.S. 102 (1996)  ........................ 142, 164
MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986)  
 ................................................................... 106
Madsen v. Women's Health Center, 512 U.S. 753 (1994)  ............... 79
Mapp v. Ohio, 367 U.S. 643 (1961)  ................................. 100
Markman v. Westview Instruments, Inc., 517 U.S. 348 (1996)  .... 18, 113
Martinez v. Court of App. of Cal., Fourth App. Dist., 120 S. Ct. 
 684 (2000)  ....................................................... 111
Maryland v. Dyson, 527 U.S. 465 (1999)  ............................. 90
Maryland v. Wilson, 519 U.S. 408 (1997)  ............................ 89
Mayer v. Chicago, 404 U.S. 189 (1971)  ............................. 142
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995)  ........ 82, 161
McMillan v. Pennsylvania, 477 U.S. 79 (1986)  ...................... 135
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)  ....................... 14
Meek v. Pittenger, 421 U.S. 349 (1975)  ..................... 53-56, 171
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)  ......... 138, 171
Michigan v. Tucker, 417 U.S. 433 (1974)  ....................... 99, 100
Miller v. Albright, 523 U.S. 420 (1998)  ........................... 138
Miller v. French, 120 S. Ct. 2246 (2000)  ....................... 29, 31
Miller v. Johnson, 515 U.S. 900 (1995)  ....................... 139, 162
Minnesota v. Carter, 525 U.S. 83 (1998)  ...........................  87
Minnesota v. Dickerson, 508 U.S. 366 (1993)  ........................ 89
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 
 (1999)  ....................................................... 46, 171
Miranda v. Arizona, 384 U.S. 436 (1966)  ................... 98-100, 158
Mississippi v. Louisiana, 506 U.S. 73 (1992)  ....................... 40
Mitchell v. Helms, 120 S. Ct. 2530 (2000)  ..... 49, 50, 52, 54, 56, 171
Mitchell v. United States, 526 U.S. 314 (1999)  ..................... 97
Monge v. California, 524 U.S. 721 (1998)  ....................... 96, 97
Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (1994)  ...... 95, 
                                                                     160
Montana v. Egelhoff, 518 U.S. 37 (1996)  ........................... 133
Mueller v. Allen, 463 U.S. 388 (1983)  .............................. 52
Murray v. Carrier, 477 U.S. 478 (1986)  ............................. 43
National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 
 U.S. 479 (1998)..................................................... 36
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)   
                                                                      68
Neder v. United States, 527 U.S. 1 (1999)  ......................... 109
Nelson v. Adams, 120 S. Ct. 1579 (2000)  ........................... 132
New York State Conf. of Blue Cross & Blue Shield Plans v. 
 Travelers Ins. Co., 514 U.S. 645 (1995)  ........................... 13
New York State Liquor Auth. v. Bellanca, 452 U.S.714 (1981)  ....... 171
New York v. Quarles, 467 U.S. 549 (1984)  ........................... 99
New York v. United States, 505 U.S. 144 (1992)  ................ 47, 154
Newsweek, Inc. v. Florida Dep't of Revenue, 522 U.S. 442 (1998)   
                                                                     128
Nichols v. Coolidge, 274 U.S. 531 (1927)  .......................... 102
Nichols v. United States, 511 U.S. 738 (1994)  ................ 110, 171
Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897 (2000)   
                                                                      67
Nixon v. United States, 506 U.S. 224 (1993)  .................... 27, 38
Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)  ..... 104, 105
Norfolk So. Ry. v. Shanklin, 120 S. Ct. 1467 (2000)  ................ 14
Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of 
 Jacksonville, 508 U.S. 656 (1993)  ......................... 33, 34, 37
O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998)  ..................... 44
O'Dell v. Netherland, 521 U.S. 151 (1997)  ...................... 37, 42
O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) 
  ................................................................... 65
O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994)  ...................... 41
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998)  ...... 132, 136
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998)  ............ 36
Ohio v. Robinette, 519 U.S. 33 (1996)  .............................. 91
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)  ....... 69, 72, 73
Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995)  ...... 17, 
                                                                     161
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175 (1995)  
 ............................................................. 9, 10, 39
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993)  ...... 17, 
                                                                     159
One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972)  
                                                                      95
Oregon Waste Systems v. Department of Envtl. Quality, 511 U.S. 93 
 (1994)  ................................................... 11, 12, 159
Ornelas v. United States, 517 U.S. 690 (1996)  ...................... 87
Parden v. Terminal Ry., 377 U.S. 184 (1964)  ....................... 171
Parke v. Raley, 506 U.S. 20 (1992)  ........................... 135, 136
Paul v. Virginia, 8 U.S. (Wall) 168 (1868)  ........................ 140
Peacock v. Thomas, 516 U.S. 349 (1996)  ............................. 39
Pennell v. City of San Jose, 485 U.S. 1 (1988)  ............... 104, 106
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)  ..... 122
Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 
 (1998)  ............................................................ 93
Pennsylvania v. Labron, 518 U.S. 938 (1996)  ........................ 90
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)  ........ 122, 152, 171
Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998)  ...... 106
Planned Parenthood v. Casey, 505 U.S. 833 (1992)  .................. 130
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)  ...... 29, 30, 152
Portuondo v. Agard, 120 S. Ct. 1119 (2000)  ........................ 110
Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 
 U.S. 328 (1986)................................................. 71, 72
Powers v. Ohio, 499 U.S. 400 (1991)  ................................ 34
Printz v. United States, 521 U.S. 898 (1997)  ..... 5, 47, 85, 119, 120, 
                                                                     154
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)  .............. 42
Raines v. Byrd, 521 U.S. 811 (1997)  ............................ 34, 35
 Rakas v. Illinois, 439 U.S. 128 (1978)  ...........................  87
Ramdass v. Angelone, 120 S. Ct. 2113 (2000)  ....................... 117
Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978)  
                                                                      34
Regents of the Univ. of California v. Doe, 519 U.S. 425 (1997)   
                                                                     122
Reich v. Collins, 513 U.S. 106 (1994)  ............................. 128
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)  ... 77, 154
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 
 (1999)  ............................................................ 18
Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993)  ....... 34, 37
Reno v. Condon, 120 S. Ct. 666 (2000)  ...................... 6, 48, 120
Reno v. Flores, 507 U.S. 292 (1993)  ................................ 18
Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878)  ............. 50
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995)  .............. 38
Rice v. Cayetano, 120 S. Ct. 1044 (2000)  ..................... 147, 166
Richards v. Jefferson County, 517 U.S. 793 (1996)  ................. 132
Richards v. Wisconsin, 520 U.S. 385 (1997)  ......................... 88
Richmond v. Lewis, 506 U.S. 40 (1992)  ............................. 116
Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000)  ...................... 111
Roe v. Wade, 410 U.S. 113 (1973)  .................................. 129
Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976)  .......... 54
Romano v. Oklahoma, 512 U.S. 1 (1994)  ............................. 116
Romer v. Evans, 517 U.S. 620 (1996)  .......................... 141, 162
Rosenberger v. University of Virginia, 515 U.S. 819 (1995)  .... 49, 59, 
                                                                      79
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)  ........ 69-71, 73, 151
Rutledge v. United States, 517 U.S. 292 (1996)  ..................... 96
Ryder v. United States, 515 U.S. 177 (1995)  .................... 25, 38
Saenz v. Roe, 526 U.S. 489 (1999)  .................. 127, 140, 141, 166
Sale v. Haitian Centers Council, 509 U.S. 155 (1993)  ............... 17
Sandin v. Conner, 515 U.S. 472 (1995)  ............................. 132
Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000)  ..... 49, 50, 
                                                                      58
Santosky v. Kramer, 455 U.S. 745 (1982)  ........................... 142
Sawyer v. Whitney, 505 U.S. 333 (1995)  ............................. 43
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 
 (1997)  ............................................................ 80
Schiro v. Farley, 510 U.S. 222 (1994)  .............................. 95
Schlup v. Delo, 513 U.S. 298 (1995)  ................................ 43
Scott v. Illinois, 440 U.S. 367 (1979)  ............................ 110
Scott v. Moore, 680 F.2d 979 (5th Cir. 1982)  ...................... 143
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)  ..... 39, 121, 
                                                      122, 144, 152, 171
Shaw v. Hunt, 517 U.S. 899 (1996)  ............................ 139, 163
Shaw v. Reno, 509 U.S. 630 (1993)  ................................. 139
Shelley v. Kraemer, 334 U.S. 1 (1948)  ............................. 143
Sherbert v. Verner, 374 U.S. 398 (1963)  ........................ 50, 61
Simmons v. South Carolina, 512 U.S. 154 (1994)  .................... 117
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)  
 .................................................................... 33
Sinclair v. United States, 279 U.S. 263 (1929)  .................... 171
Sloan v. Lemon, 413 U.S. 825 (1973)  ................................ 53
Smiley v. Citibank, 517 U.S. 735 (1996)  ............................ 13
Smith v. Robbins, 528 U.S. 259 (2000)  ............................. 142
Soldal v. Cook County, 506 U.S. 56 (1992)  .......................... 87
South Carolina v. Baker, 484 U.S. 505 (2000)  ...................... 120
South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999)  ... 10, 165
South Dakota v. Bourland, 508 U.S. 679 (1993)  ...................... 17
Spencer v. Kemna, 523 U.S. 1 (1998)  ................................ 37
Stansbury v. California, 511 U.S. 318 (1994)  ...................... 101
State Oil Co. v. Khan, 522 U.S. 3 (1997)  ...................... 39, 171
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) 
  ................................................................... 33
Stenberg v. Carhart, 120 S. Ct. 2597 (2000)  .................. 128, 168
Stone v. Powell, 428 U.S. 465 (1976)  ......................... 100, 101
Strickland v. Washington, 466 U.S. 668 (1984)  ................ 111, 134
Strickler v. Greene, 527 U.S. 263 (1999)  .......................... 134
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997)  ..... 106
Sullivan v. Louisiana, 508 U.S. 275 (1993)  ................... 109, 134
Texas v. United States, 523 U.S. 296 (1998)  ........................ 36
Tilton v. Richardson, 403 U.S. 672 (1971)  .......................... 54
Timmons v. Twin City Area New Party, 520 U.S. 351 (1997)  ........... 66
Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967)  ................. 37
Troxel v. Granville, 120 S. Ct. 2054 (2000)  .................. 129, 166
Tuggle v. Netherland, 516 U.S. 10 (1995)  .......................... 117
Tuilaepa v. California, 512 U.S. 967 (1994)  ....................... 116
Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)  ............. 74
Turner Broadcasting System v. FCC, 520 U.S. 180 (1997)  ............. 75
Turner v. Fouche, 396 U.S. 346 (1970)  .............................. 34
TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993)  ........ 131
U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 
 (1994)  ............................................................ 37
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)  ..... 2, 3, 161
United States v. Bagley, 473 U.S. 667 (1985)  ...................... 134
United States v. Bajakajian, 524 U.S. 321 (1998)  .................. 115
United States v. Balsys, 524 U.S. 666 (1998)  ....................... 99
United States v. Bramblett, 348 U.S. 503 (1955)  ................... 171
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)  ............... 90
United States v. Cabrales, 524 U.S. 1 (1998)  ...................... 110
United States v. Carlton, 512 U.S. 26 (1994)  ...................... 102
United States v. Di Re, 332 U.S. 581 (1948)  ........................ 91
United States v. Dixon, 509 U.S. 688 (1993)  ................... 97, 171
United States v. Doe, 465 U.S. 605 (1984)  .......................... 98
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)  .... 69-71, 
                                                                      73
United States v. Gaudin, 515 U.S. 506 (1995)  ................. 109, 171
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996)  ................ 85
United States v. Halper, 490 U.S. 435 (1989)  ...................... 171
United States v. Harris, 106 U.S. 629 (1883)  ...................... 143
United States v. Hemme, 476 U.S. 558 (1986)  ....................... 102
United States v. Hubbell, 120 S. Ct. 2037 (2000)  ............... 98, 99
United States v. IBM, 517 U.S. 843 (1996)  ............. 18, 19, 39, 151
United States v. Jacobsen, 466 U.S. 109 (1984)  ..................... 87
United States v. James Daniel Good Real Property, 510 U.S. 43 
 (1993)  ........................................................... 131
United States v. Lanier, 520 U.S. 259 (1997)  ...................... 133
United States v. Lee, 455 U.S. 252 (1982)  .......................... 51
United States v. Locke, 120 S. Ct. 1135 (2000)  ................ 16, 166
United States v. Lopez, 514 U.S. 549 (1995)  ............. 6-8, 119, 152
United States v. Malenzuela-Bernal, 458 U.S. 858 (1982)  ........... 134
United States v. Martinez-Salazar, 120 S. Ct. 774 (2000)  .......... 110
United States v. Morrison, 120 S. Ct. 1740 (2000)  ..... 7, 8, 119, 143, 
                                                                     157
United States v. National Treasury Employees Union, 513 U.S. 454 
 (1995)  ................................................... 26, 65, 152
United States v. O'Brien, 391 U.S. 367 (1968)  .................. 74, 78
United States v. One Assortment of 89 Firearms, 465 U.S. 354 
 (1984)  ............................................................ 95
United States v. Padilla, 508 U.S. 77 (1993)  ....................... 93
United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 
 1878 (2000)  ............................................... 75-78, 157
United States v. Ramirez, 523 U.S. 65, 71 (1998)  ................... 88
United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)  ..... 107
United States v. United States Shoe Corp., 523 U.S. 360 (1998)   
                                                                 19, 154
United States v. Ursery, 518 U.S. 267 (1996)  ....................... 95
United States v. Virginia, 518 U.S. 515 (1996)  ............... 139, 163
United States v. Watts, 519 U.S. 148 (1997)  ........................ 96
United States v. Winstar Corp., 518 U.S. 839 (1996)  ............... 103
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997)  ............ 85
Untermyer v. Anderson, 276 U.S. 440 (1928)  ........................ 102
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)  ............. 102
Vacco v. Quill, 521 U.S. 793 (1997)  .......................... 130, 137
Various Items of Personal Property v. United States, 282 U.S. 577 
 (1931)  ............................................................ 95
Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 120 
 S. Ct. 1858 (2000).................................................. 33
Vernonia School Dist. v. Acton, 515 U.S. 646 (1995)  ............ 91, 92
Victor v. Nebraska, 511 U.S. 1 (1994)  ............................. 135
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 
 Council, 425 U.S. 748 (1976)  ...................................... 72
Voinovich v. Quilter, 507 U.S. 146 (1993)  ......................... 139
Wallace v. Jaffrey, 472 U.S. 38 (1985)  ............................. 50
Walton v. Arizona, 497 U.S. 639 (1990)  ...........................  135
Ward v. Race Horse, 163 U.S. 504 (1896)  ........................... 171
Warth v. Seldin, 422 U.S. 490 (1975)  ............................... 33
Washington v. Glucksberg, 521 U.S. 702 (1997)  ..................... 130
Waters v. Churchill, 511 U.S. 661 (1994)  ........................... 66
Weeks v. Angelone, 120 S. Ct. 727 (2000)  .......................... 117
Weiss v. United States, 510 U.S. 163 (1994)  ........................ 25
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)  ..... 9, 11, 160
Whren v. United States, 517 U.S. 806 (1996)  ........................ 90
Williamson County Regional Planning Comm'n v. Hamilton Bank,
  473 U.S. 172 (1985)  ............................................. 106
Wilson v. Arkansas, 514 U.S. 927 (1995)  ............................ 88
Wilson v. Layne, 526 U.S. 603 (1999)  ............................... 89
Wilton v. Seven Falls Co., 515 U.S. 277 (1995)  ..................... 36
Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381 (1998)   
                                                                     125
Wisconsin v. City of New York, 517 U.S. 1 (1996)  .................... 4
Wisconsin v. Mitchell, 508 U.S. 476 (1993)  ..................... 64, 76
Wisconsin v. Yoder, 406 U.S. 205 (1972)  ........................ 50, 61
Withrow v. Williams, 507 U.S. 680 (1993)  ..................... 100, 101
Witte v. United States, 515 U.S. 389 (1995)  .................... 96, 97
Witters v. Washington Dep't of Social Servs., 474 U.S. 481 (1986)  
 ................................................................ 52, 55
Wolman v. Walter, 433 U.S. 229 (1977)  ................. 52, 54, 56, 171
Wood v. Bartholomew, 516 U.S. 1 (1995)  ............................ 134
Wyoming v. Houghton, 526 U.S. 295 (1999)  ........................... 91
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996)  ................. 40
Ybarra v. Illinois, 444 U.S. 85 (1979)  ............................. 91
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)   
                                                                      72
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)  ... 49, 53, 
                                                                  55, 57
                                  INDEX

Abortion
  Colorado statute restricting proselytizing outside clinics  ....... 81
  Nebraska ban on ``partial-birth'' abortions, undue burden on 
   right  .......................................................... 128
  protests, injunctions, First Amendment protections  ............... 79
Admiralty
  maritime torts  ................................................... 40
Advertising
  ban on ads for casino gambling, invalidity  ....................... 71
  compelled disclosure of information  .............................. 72
Affirmative action
  federal legislation subject to strict scrutiny  .................. 137
Age Discrimination in Employment Act
  not exercise of 14th Amdmt. enforcement power  ................... 145
Ancestry
  proxy for race for 15th Amdmt. analysis  ......................... 147
Antiterrorism and Effective Death Penalty Act of 1996
  limitations on successive habeas petitions  ....................... 43
Appointments Clause
  definition of ``inferior officer''  ............................... 25
  military judges  .................................................. 25
Association, right of
  Boy Scouts' exclusion of homosexual from adult membership  ........ 64
  contribution limitations, campaign finance  ....................... 67
  parade organizers, control of parade message  ..................... 64
Boy Scouts
  right to exclude avowed homosexuals  .............................. 64
Brady Handgun Violence Prevention Act
  state enforcement, constitutionality  ............................. 47
Cable television
  First Amendment protections  ...................................... 74
  indecent programming  ............................................. 76
Campaign finance
  independent party expenditures, First Amendment  .................. 67
  state limits on contributions to state political candidates  ...... 67
Census
  decision not to make statistical adjustment  ....................... 4
Children
  juvenile court order to produce a child  .......................... 98
Civil commitment
  not punishment for double jeopardy purposes  ...................... 95
  sexual predators with mental abnormality or personality disorder 
    ................................................................ 129
Commerce clause
  discriminatory local solid waste ``flow control'' law  ............ 12
  discriminatory state taxation  ................................ 10, 11
  state taxation, apportionment, multinational corporation  ......... 13
Commerce power
  anti-commandeering restriction  .............................. 47, 119
  invalidity of Gun-Free School Zones Act  ........................... 6
  invalidity of Violence Against Women Act  .......................... 8
*COM008*Congress
  Members, standing to sue  ......................................... 35
  qualifications of Members, term limits  ......................... 2, 3
Congressional districting
  racial gerrymandering, bizarrely shaped districts  ............... 139
Congressional powers
  abrogation of states' 11th Amdmt. immunity via 14th Amdmt.  ...... 144
  no power to abrogate states' 11th Amdmt. immunity via Art. I   
                                                                     122
Contempt
  distinction between civil and criminal contempt  .................. 30
Counsel, assistance of
  ineffective counsel, grounds for new trial  ...................... 111
  self-representation, no right on direct appeal from conviction  
                                                                     111
Death penalty
  Antiterrorism and Effective Death Penalty Act of 1996  ............ 43
  military justice, standards promulgated by President  .............. 1
  permissible jury instructions  ................................... 116
Delegation
  Line Item Veto Act  ................................................ 5
  military justice, President's authority as Commander-in-Chief   
                                                                   1, 23
Diversity of Citizenship
  federal court cases, choice of law  ............................... 40
Driver's Privacy Protection Act
  not invalid commandeering of state government  ................... 120
Drug testing
  candidates for state office  ...................................... 92
  public high school athletes  ...................................... 91
Due process
  anti-loitering ordinance, enforcement, lack of standards  ........ 133
  retroactive legislation  .................................... 102, 103
  retroactive taxation  ............................................ 102
  solitary confinement of prisoners  ............................... 132
Durational residency requirements
  privileges or immunities analysis  .......................... 127, 140
Enforcement of Fourteenth Amendment
  congressional power, requisites for legislation  ................. 143
  congruence and proportionality requirements  ..................... 144
Ex Post Facto Clause
  decreasing frequency for parole-suitability hearings  ............. 20
  retroactive reduction of evidence needed to convict  .............. 20
Excessive fines
  civil forfeiture  ................................................ 115
  reporting violation, currency export  ............................ 115
Export Clause
  Harbor Maintenance Tax  ........................................... 18
False Claims Act
  qui tam actions, standing to sue  ................................. 33
False statements
  federal statute, materiality as issue for jury  .................. 109
Federalism
  anti-commandeering rule  .......................................... 47
  Gun-Free School Zones Act, invalidity  ........................... 119
  principles reflected in commerce power analysis  ................... 7
  state sovereign immunity, suits in federal court  ................ 122
  Violence Against Women Act, invalidity  .......................... 119
First Amendment
  expressive behavior, state authority to regulate, 21st Amdmt.   
                                                                     149
Forfeiture
  innocent joint owner, car used in prostitution  .................. 128
Government contractors
  free speech rights  ............................................... 65
Grandparents
  right to visitation with grandchildren  .......................... 129
Grants
  decency standard, funding for the arts  ........................... 68
Gun-Free School Zones Act
  invalid exercise of commerce power  ........................... 6, 119
Guns
  Brady Act, background checks, state enforcement  ............. 47, 119
  regulation, Second Amendment implications  ........................ 85
Habeas corpus
  Antiterrorism and Effective Death Penalty Act  .................... 43
  claim of innocence, capital cases  ............................... 117
  statutory limitations  ........................................ 41, 42
Harbor Maintenance Tax
  constitutionality  ................................................ 18
Hate crimes
  sentence enhancement, need for proof beyond reasonable doubt   
                                                                     135
Homosexuals
  Colorado constitutional amendment limiting local laws protecting 
    ................................................................ 141
  exclusion of avowed homosexual from Boy Scouts  ................... 64
Honoraria ban
  government employees, free speech rights  ......................... 65
Immigration
  deportation of illegal alien, selective enforcement no defense  
                                                                      18
Immunity from suit
  President, conduct prior to assuming office  ...................... 26
  States, actions in state courts  ................................. 124
  States, congressional power to abrogate pursuant to 14th Amdmt.  
   ................................................................. 144
  States, federal court actions, Eleventh Amendment  ............... 121
Impeachment
  judicial review of Senate trial, ``political question''  .......... 27
Import-export clause
  federal excise tax on insurance for exported goods  ............... 19
Indian Gaming Regulatory Act
  invalidity, abrogation of state immunity in federal court  ....... 122
Indigents
  trial transcript necessary for appeal in parental rights case   
                                                                     142
Injunctions
  public demonstrations, First Amendment limitations  ............... 79
Judicial review
  preclusion of review, military base closures  ..................... 24
  Westfall Act, Federal Tort Claims Act  ............................ 27
Jury trial
  civil, when required  ............................................ 113
  criminal, mixed questions of law and fact  ....................... 109
  when required, multiple petty offenses  .......................... 109
Limitations period
  retroactive change, final judgments, unconstitutionality  ......... 29
Line Item Veto Act
  as delegation of power  ............................................ 2
  constitutionality, presentment clause  ............................. 4
  standing of Members of Congress to challenge  ..................... 35
Loitering
  Chicago ordinance, lack of standards governing police discretion 
    ................................................................ 133
Military justice
  appointment of military judges  ................................... 25
  death penalty, President's promulgation of standards  .............. 1
Miranda warning
  constitutional underpinning  ...................................... 99
  waiver of rights  ................................................ 101
Mootness
  appropriateness of vacatur as remedy  ............................. 37
Newsracks
  use on public property, ban limited to commercial materials  ...... 70
Nude dancing
  First Amendment coverage  ......................................... 78
Parades
  organizers, right to control parade message  ...................... 81
Parents
  right to control care and custody of children  ................... 129
Political question
  impeachment proceedings, judicial review  ..................... 27, 38
Preemption
  Burma sanctions, Mass. law's conflict with federal objectives   
                                                                      17
  ERISA, express preemption language, conflict analysis  ............ 16
  Medical Device Amendments  ........................................ 14
  National Traffic and Motor Vehicle Safety Act, state tort law   
                                                                      15
Presentment Clause
  Line Item Veto Act, violation of clause  ........................... 5
President
  immunity from suit, conduct prior to assuming office  ............. 26
Press, freedom of
  cable television  ................................................. 74
Prison Litigation Reform Act
  automatic stay provisions, constitutionality  ..................... 31
  restrictions on litigation  ....................................... 31
Privileges and immunities of state citizenship
  disparate state taxation of residents and nonresidents  ........... 45
Privileges or immunities of national citizenship
  durational residency requirements, welfare eligibility  .......... 127
Prosecutorial misconduct
  failure to disclose evidence, materiality  ....................... 134
Public television
  candidate debates, access, First Amendment  ....................... 79
Punitive damages
  amount, due process constraints  ................................. 131
Racial discrimination
  affirmative action, federal legislation, strict scrutiny  ........ 137
  voting, 15th Amdmt., ancestry as proxy for race  ................. 147
Racial gerrymandering
  ``bizarre'' shape of congressional districts  .................... 139
Religion: Establishment Clause
  equal access of religious groups to school property  .............. 58
  Lemon tests  ...................................................... 49
  prayer at public high school football games  ...................... 58
  public funding for instructional materials for church schools   
                                                                      56
  public funding for sign-language interpreter in public schools  
                                                                      55
  religious displays on public property  ............................ 59
  special school district for religious sect  ....................... 60
  test for validity  ................................................ 50
Religion: Free Exercise
  animal sacrifice  ................................................. 61
Religious Freedom Restoration Act
  constitutionality  ........................................... 61, 144
Retroactivity
  ex post facto laws  ............................................... 20
  extension of limitations period, effect on final judgments  ....... 29
  liability for past conduct, taking and due process implications  
   ................................................................. 103
  Supreme Court ruling, cases still on direct review  ............... 38
  tax legislation, due process  .................................... 102
  tax statutes, need for rational legislative purpose  ............. 102
Right to die
  physician-assisted suicide, no due process right  ................ 130
Ripeness
  challenges to administrative action  .............................. 36
  regulatory taking claim, as-applied challenge  ................... 106
Search and seizure
  ``knock and announce'' rule  ...................................... 88
  anonymous tip, uncorroborated  .................................... 89
  automobile stop, ordering passengers from car  .................... 89
  definition of ``seizure''  ........................................ 87
  drug testing of candidates for state office  ...................... 92
  drug testing of public high school athletes  ...................... 91
  frisk, ``plain touch,'' seizure of contraband  .................... 89
  reasonable suspicion, flight upon sight of police  ................ 89
  traffic violation, pretextual stop  ............................... 90
Self-Incrimination
  consent directive, foreign bank accounts  ......................... 98
  production of tax records  ........................................ 98
Self-representation
  no right on direct appeal from conviction  ....................... 111
Sentence enhancement
  not additional punishment for double jeopardy purposes  ........... 96
Sentencing
  sentencing factors distinguished from elements of crime  ......... 135
Separation of powers
  automatic stays, Prison Litigation Reform Act  .................... 31
  changed position of Justice Department  ........................... 23
  delegation to President in role as Commander-in-Chief  ............. 2
  legislative alteration of final judgments of courts  .............. 29
  presidential immunity from suit  .................................. 26
Sex discrimination
  jury selection  .................................................. 138
  military college  ................................................ 138
Sexual predators
  civil commitment  ................................................ 129
Speech, commercial
  beer labels, display of alcohol content  .......................... 69
  cable television  ................................................. 74
  compelled disclosure in advertising  .............................. 72
  liquor ads, price information  .................................... 71
  reasonable fit between ends and means of regulation  .............. 70
Speech, freedom of
  advertising restrictions  ......................................... 71
  anonymous advocacy  ............................................... 82
  ban on public nudity, ``exotic'' dancing  ......................... 78
  federal support for arts, decency standard  ....................... 68
  hate crimes, enhancement of criminal penalty  ..................... 76
  imposition of mandatory activity fee by public university  ........ 63
  in-person solicitation  ........................................... 69
  independent government contractors  ........................... 65, 66
  parade organizers, right to control parade message  ............... 81
  public demonstrations, injunctions  ............................... 79
  required disclosures by ballot-initiative petition circulators  
                                                                      67
  residential signs  ................................................ 82
  signs, use of utility poles  ...................................... 82
Standing to sue
  False Claims Act, qui tam actions  ................................ 33
  Members of Congress  .............................................. 34
  public contracts, challenge to affirmative action  ................ 33
  redressability  ................................................... 33
  statutory conferral, generalized grievance  ....................... 32
  suit by organization on behalf of members  ........................ 34
Stare decisis
  conflicting views of Justices  .................................... 39
  rejection of request to overrule Miranda  ........................ 100
State action
  First Amendment limitation  ....................................... 62
  predicate for exercise of 14th Amendment enforcement power  ...... 143
States
  immunity from suit in state courts  .............................. 124
  immunity in federal courts, congressional power to abrogate  ..... 121
  residual sovereignty in constitutional structure  ................. 47
  statehood, effect on Indian treaty rights to hunt and fish  ....... 46
Submerged lands
  Coeur d'Alene Tribe suit barred by Eleventh Amendment  ........... 125
Suicide
  no due process right to physician assistance  .................... 130
Taking of property
  as-applied challenges, ripeness requirement  ..................... 106
  exaction conditions, development permits  ........................ 104
Taxation, Federal
  excise tax, import-export clause  ................................. 19
  Harbor Maintenance Tax, Export Clause  ............................ 18
Taxation, State
  apportionment, multinational corporation, franchise tax  .......... 13
  discrimination against interstate commerce  ................... 10, 11
  privileges and immunities, nonresident taxation  .................. 45
  salaries of federal judges, application of local occupation tax  
   .................................................................. 48
Term limits
  Members of Congress, state-imposed limits  ......................... 2
Travel, right to
  doctrinal shift to privileges or immunities analysis  ............ 127
  three separate rights  ........................................... 140
Twenty-first Amendment
  authority of states, regulation of expressive behavior  .......... 149
  prohibition against liquor price advertising not shielded by   
                                                                     149
Vacatur
  remedy for mootness, limitations  ................................. 37
Violence Against Women Act
  invalid as exercise of 14th Amendment enforcement power  ......... 143
  invalid exercise of commerce power  ................................ 8
Visitation rights
  grandparents  .................................................... 129
Voting
  Hawaii restriction based on ancestry, 15th Amendment  ............ 147