[Constitution of the United States of America: Analysis and Interpretation - 1996 Supplement]
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Constitution of the United States: Analysis and Interpretation, 1996 Supplement





 104th Congress                                                Document
                                 SENATE

   2d Session                                                 No. 104-14

________________________________________________________________________


                            THE CONSTITUTION
                                 OF THE
                        UNITED STATES OF AMERICA
                       ANALYSIS AND INTERPRETATION
                               __________

                             1996 SUPPLEMENT

                ANALYSIS OF CASES DECIDED BY THE SUPREME

               COURT OF THE UNITED STATES TO JULY 1, 1996






                             Prepared by the

                     Congressional Research Service

                           Library of Congress

                            Johnny H. Killian

                           George A. Costello

                            Kenneth R. Thomas

                                 Editors

                     U.S. GOVERNMENT PRINTING OFFICE



       22-725CC              WASHINGTON : 1997

________________________________________________________________________

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

                          Washington, DC 20402







[[Page 1]]



                                ARTICLE I

Delegation
[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 premedicated 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\
---------------------------------------------------------------------------

                    \1\ 116 S. Ct. 1737 (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, 116 S. Ct. at 1742, a point on which Justice
            Thomas disagreed, id. at 1753.
                    \4\ Rule for Courts-Martial; see 116 S. Ct. at 1740,
            1741-42.
---------------------------------------------------------------------------

                    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\
---------------------------------------------------------------------------

                    \5\ 10 U.S.C. Sec. Sec. 818, 836(a), 856.
                    \6\ 116 S. Ct. at 1750-51.
---------------------------------------------------------------------------

                    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

[[Page 2]]

            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.
---------------------------------------------------------------------------

                    \7\ Id. at 1743-44.
---------------------------------------------------------------------------
Qualifications of Members of Congress
[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,
            who would hold that Congress, for different reasons, could
            not add to qualifications, although the States could. Id. at
            875-76.
[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.
---------------------------------------------------------------------------

                    \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 7 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
            years, nine years citizenship, and an inhabitant of the
            State.
---------------------------------------------------------------------------

                    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\
---------------------------------------------------------------------------

                    \10\ See Sullivan, Dueling Sovereignties: U.S. Term
            Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
---------------------------------------------------------------------------

                    Thus, the Court and the dissent drew different
            conclusions from the text of the qualifications clauses and
            the other clauses re-

[[Page 3]]

            specting 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 at the
            foundation of the Constitution's founding. 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.
---------------------------------------------------------------------------

                    \11\ 514 U.S. at 848 (Justice Thomas dissenting).
            See generally id. at 846-65.
---------------------------------------------------------------------------

                    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 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\
---------------------------------------------------------------------------

                    \12\ Id. at 802.
                    \13\ Id. at 798-805. And see id. at 838-45 (Justice
            Kennedy concurring).
---------------------------------------------------------------------------

                    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 the context of the
            States, an issue at the core of many controversies today.

[[Page 4]]

[P. 115, add to n.317:]
                Another census controversy was resolved in Wisconsin v.
            City of New York, 116 S. Ct. 1091 (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.
Commerce Clause
[P. 207, add to text following n.820:]

                    For the first time in almost sixty years, \14\ the
            Court invalidated a federal law as exceeding Congress'
            authority under the commerce clause. \15\ The statute was a
            provision making it a federal offense to possess a firearm
            within 1,000 feet of a school. \16\ 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. \17\
            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, 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.'' \18\
---------------------------------------------------------------------------

                    \14\ Carter v. Carter Coal Co., 298 U.S. 238 (1936).
                    \15\ 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.
                    \16\ 18 U.S.C. Sec. 922(q)(1)(A). Congress
            subsequently amended the section to make the offense
            jurisdictionally turn on possession of ``a firearm that has
            moved in or that otherwise affects interstate or foreign
            commerce.'' Pub. L. 104-208, 110 Stat. 3009-370.
                    \17\ 514 U.S. at 556-57, 559.
                    \18\ Id. at 558-59.
---------------------------------------------------------------------------

                    Clearly, said the Court, the criminalized activity
            did not implicate the first two categories. \19\ 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 enter-

[[Page 5]]

            prise.'' 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.'' \20\ 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.'' \21\ 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. \22\
            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.'' \23\
---------------------------------------------------------------------------

                    \19\ Id. at 559.
                    \20\ Id. at 559-61.
                    \21\ Id. at 561.
                    \22\ Id. at 563-68.
                    \23\ Id. at 564.
---------------------------------------------------------------------------

                    Whether this decision bespeaks a Court determination
            to police more closely Congress' exercise of its commerce
            power, so that it would be a noteworthy case, \24\ or
            whether it is 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 is unclear. Obviously,
            Justice Thomas would undo much of modern commerce-clause
            jurisprudence. He writes that the substantial-effects test
            in conjunction with the aggregation principle betrays the
            intent of the Framers and confers a ``police power'' on
            Congress that it should not, indeed, does not, have. He
            argues that the Court in a future case should undo what it
            has done. \25\ On the other hand, Justice Kennedy, with whom
            Justice O'Connor joined, argued that the Court should
            generally not upset the stability of commerce-clause
            jurisprudence and should not erode the ``essential
            principles now in place respecting the congressional power
            to regulate transactions of a commercial nature.'' But, when
            a congressional enactment upsets the federal balance by
            extending federal power into areas ``to which

[[Page 6]]

            States lay claim by right of history and expertise,'' he
            would have the Court intervene. \26\
---------------------------------------------------------------------------

                    \24\ ``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).
                    \25\ Id. at 584-602 (Justice Thomas concurring).
                    \26\ Id. at 568-83 (Justice Kennedy concurring).
---------------------------------------------------------------------------

                    Thus, it seems unlikely that the Court, as now
            constituted, will retreat from much of the existing law in
            this area, but it may well be that, outside the area of
            economic regulation, \27\ the Court will exert a restraining
            hand to legislation such as that federalizing much state
            criminal law enforcement.
---------------------------------------------------------------------------

                    \27\ For a striking example, in the same Term as
            Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.
            265 (1995).
---------------------------------------------------------------------------
Dormant Commerce Clause--State Regulation and Taxation
[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).
[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).
[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).
[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. 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
            unapportioned to reflect the intrastate travel and the
            interstate travel. \28\ The tax in this case was different,
            the Court held. The previous tax constituted a levy on gross
            receipts, payable by the seller, whereas the present tax was
            a sales

[[Page 7]]

            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. \29\
---------------------------------------------------------------------------

                    \28\ 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.
                    \29\ 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.
---------------------------------------------------------------------------

                    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. \30\
---------------------------------------------------------------------------

                    \30\ Fulton Corp. v. Faulkner, 116 S. Ct. 848
            (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 855-60.
---------------------------------------------------------------------------
[P. 232, add to n.961:]
                And see Oregon Waste Systems 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. 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.
[P. 236, add to text following n.980:]

                    Further extending the limitation of the clause on
            waste disposal, \31\ 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. \32\ 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

[[Page 8]]

            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.
---------------------------------------------------------------------------

                    \31\ See also Oregon Waste Systems, Inc. v.
            Department of Envtl. Quality, 511 U.S. 93 (1994)
            (discriminatory tax).
                    \32\ 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 localities 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. \33\
---------------------------------------------------------------------------

                    \33\ 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).
---------------------------------------------------------------------------
[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 Corp., the Court in Barclays
            Bank v. Franchise Tax Bd. of California, \34\ 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 is that foreign corporations have less protection under
            the neg-

[[Page 9]]

            ative commerce clause, perhaps intentionally for a variety
            of reasons. \35\
---------------------------------------------------------------------------

                    \34\ 512 U.S. 298 (1994).
                    \35\ The Supreme Court, Leading Cases, 1993 Term,
            108 Harv. L. Rev. 139, 139-49 (1993).
---------------------------------------------------------------------------
Preemption
[P. 247, add to n.1026, immediately preceding City of New
    York v. FCC:]
                Smiley v. Citibank, 116 S. Ct. 1730 (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).
[P. 249, add to text following n.1035:]

                    No clarification of the confusing Cipollone decision
            and opinions resulted in Medtronic, Inc. v. Lohr. \36\ The
            Medical Device Amendments (MDA) of 1976 prohibits 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. \37\ 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''

[[Page 10]]

            to a device previously on the market, a situation of some
            import to at least some of the Justices.
---------------------------------------------------------------------------

                    \36\ 116 S. Ct. 2240 (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).
                    \37\ 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.
            \38\
---------------------------------------------------------------------------

                    \38\ The dissent, by Justice O'Connor and three
            others, would have held preempted the latter claims, 116 S.
            Ct. at 2262, whereas Justice Breyer thought that common-law
            claims would sometimes be preempted, but not here. Id. at
            2259 (concurring).
---------------------------------------------------------------------------
[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 predispute arbitration agreements that were not
            entered into in contemplation of substantial interstate
            activity); Doctor's Associates, Inc. v. Casarotto, 116 S.
            Ct. 1652 (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 of Marion County v. Nelson, 116 S.
            Ct. 1103 (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. 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).

[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, 115 S. Ct.
            2214 (1995).

[[Page 11]]

[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
[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).
[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.
Copyrights and Patents
[P. 297, add to n.1353:]
                In Markman v. Westview Instruments, Inc., 116 S. Ct.
            1384 (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.
[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 War Power
[P. 316, add to n.1465:]
                See Loving v. United States, 116 S. Ct. 1737 (1996) (in
            context of the death penalty under the UCMJ).
Taxes on Exports
[P. 356, add to text following n.1775:]

                    In United States v. IBM Corp., \39\ 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 \40\ and
            with dormant-commerce-clause doctrine. In that

[[Page 12]]

            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.
---------------------------------------------------------------------------

                    \39\ 116 S. Ct. 1793 (1996).
                    \40\ Article I, Sec. 10, cl. 2, applying to the
            States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
                In United States v. IBM Corp., 116 S. Ct. 1793 (1996),
            the Court adhered to Thames & Mercy, 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 conflating of a tax on the
            insurance of exported goods as the same as 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 1800-01. The dissenters argued that the issue had been
            presented and should be decided by overruling the earlier
            case. Id. at 1804 (Justices Kennedy and Ginsburg
            dissenting).
Ex Post Facto Laws
[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 held impermissible 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.
Imposts or Duties on Imports or Exports
[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).




[[Page 13]]



                               ARTICLE II

Executive Power
[P. 420, add to n.34:]
                In Loving v. United States, 116 S. Ct. 1737 (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 his 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
            1750-51.
Separation of Powers
[P. 422, add to text following n.45:]

                    Significant change in the position of the Executive
            Branch respecting its position 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 contention
            of the Department of Justice, 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).

---------------------------------------------------------------------------

[[Page 14]]

[P. 425, in text following n.61, add:]

                    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.'' Id. at 305-06 (footnote
            citations omitted).
---------------------------------------------------------------------------
Appointment of Officers
[P. 512, add to n.461:]
                The 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 designa-

[[Page 15]]

            tion 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 was impermissible and their
            actions were not salvageable under the de facto officer
            doctrine. Ryder v. United States, 515 U.S. 177 (1995).
[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 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, 115 S. Ct. 2227 (1995), held that the Attorney
            General's certification is subject to judicial review.
Impeachment
[P. 591, in text following n.784, add:]

                    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.'' \6\ Specifically, the
            Could 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.
---------------------------------------------------------------------------

                    \6\ 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.

[[Page 17]]


---------------------------------------------------------------------------


                               ARTICLE III

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\
---------------------------------------------------------------------------

                    \2\ Id. at 227 (emphasis by Court).
---------------------------------------------------------------------------
[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).

[[Page 18]]

Contempt Power
[P. 622, add to text following n.154:]

                    In International Union, UMW v. Bagwell, \3\ 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.
            \4\ Much prior doctrine, 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 remain.
---------------------------------------------------------------------------

                    \3\ 512 U.S. 821 (1994).
                    \4\ 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.
---------------------------------------------------------------------------
[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.
[P. 634, add to n.206:]
                See also International Union, UMW v. Bagwell, 512 U.S.
            821 (1994).
Congressional Control Over Habeas
[P. 639, add to text following n.238:]

                    In Felker v. Turpin, \5\ the Court again passed up
            the opportunity to delineate Congress' permissive authority
            over habeas, finding that of the provisions of the
            Antiterrorism and Effective Death Penalty Act \6\ none did
            raise questions of constitutional import.
---------------------------------------------------------------------------

                    \5\ 116 S. Ct. 2333 (1996).
                    \6\ P. L. 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.

---------------------------------------------------------------------------

[[Page 19]]

Congressional Control Over the Injunctive Process
[P. 642, add to text following n.264:]

                    Perhaps pressing its powers further than prior
            legislation, Congress has enacted the Prison Litigation
            Reform Act of 1996. \7\ 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. If a decree was previously issued without
            regard to the standards now imposed, the defendant or
            intervenor is entitled to move to vacate it. No prospective
            relief is to last longer than two years if any party or
            intervenor so moves. A number of constitutional challenges
            can be expected respecting Congress' power to limit federal
            judicial authority to remedy constitutional violations.
---------------------------------------------------------------------------

                    \7\ The statute was part of an Omnibus
            Appropriations Act signed by the President on April 26,
            1996. P. L. 104-134, Sec. Sec. 801-10, 110 Stat. 1321-66-77,
            amending 18 U.S.C. Sec. 3626. See Benjamin v. Jacobson, 935
            F. Supp. 332 (S.D.N.Y. 1996).
---------------------------------------------------------------------------
Standing
[P. 661, add to text following n.357:]

                    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.'' \8\ 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

[[Page 20]]

            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.'' \9\ The
            association, therefore, established standing by alleging
            that its members was able and ready to bid on contracts but
            that a discriminatory policy prevented them from doing so on
            an equal basis. \10\
---------------------------------------------------------------------------

                    \8\ 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).
                    \9\ Northeastern Fla. Ch. of the Associated Gen.
            Contractors v. City of Jacksonville, 508 U.S. 656, 666
            (1993). 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).
                    \10\ 508 U.S. at 666. But see, in the context of
            ripeness, Reno v. Catholic Social Services, 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.
---------------------------------------------------------------------------
Declaratory Judgments
[P. 674, add to n.436:]
                See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
Ripeness
[P. 678, add to n.457:]
                In the context of the ripeness to challenge of 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 Services, Inc.,
            509 U.S. 43 (1993); Lujan v. National Wildlife Federation,
            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. 679-80, add to n.463:]
                Consider the impact of Cardinal Chemical Co. v. Morton
            Int'l, Inc., 508 U.S. 83 (1993).

[[Page 21]]

[P. 680, add to n.466:]
                Following Aladdin's Castle, the Court in Northeastern
            Fla. Ch. of the Associated 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).
Retroactivity of Judicial Decisions
[P. 687, add to text following n.509:]

                    Apparently, the Court now has resolved this dispute,
            although the principal decision is a close five-to-four
            result. In Harper v. Virginia Dep't of Taxation, \11\ 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.'' \12\ Four Justices continued to adhere to
            Chevron Oil, however, \13\ so that with one Justice each
            retired from the different sides one may not regard the
            issue as definitively settled. \14\
---------------------------------------------------------------------------

                    \11\ 509 U.S. 86 (1993).
                    \12\ 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.
                    \13\ 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.
                    \14\ 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).

---------------------------------------------------------------------------

[[Page 22]]

Political Questions
[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. \15\
---------------------------------------------------------------------------

                    \15\ 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--Stare Decisis
[P. 712, add to n.639:]
                Recent discussions of and both applications of and
            refusals to apply stare decisis may be found in United
            States v. IBM Corp., 116 S. Ct. 1793, 1800-01 (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 1804
            (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,
            116 S. Ct. 1114, 1127-32 (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 1133, 1145. 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, 116 S. Ct. 2309, 2323 (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 2321 (Court notes those issues
            not raised or argued).
Federal Question Jurisdiction
P. 721, add to n.702:]
                See also Kokkonen v. Guardian Life Ins. Co., 511 U.S.
            375 (1994); Peacock v. Thomas, 116 S. Ct. 862 (1996) (both
            cases using the new vernacular of ``ancillary
            jurisdiction'').
Admiralty
[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

[[Page 23]]

            giving rise to the incident had a substantial relationship
            to traditional maritime activity.
United States as a Party
[P. 743, add to n.842:]
                But, in Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619
            (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.
[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 States
[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.
Diversity of Citizenship
[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. \16\
            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 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, \17\ rather than what had been the
            prevailing standard,

[[Page 24]]

            in which the Court balanced state and federal interests to
            determine which law to apply. \18\ 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.'' \19\ Additional decisions will be required to
            determine which approach, if either, prevails.
---------------------------------------------------------------------------

                    \16\ Gasperini v. Center for Humanities, Inc., 116
            S. Ct. 2211 (1996). The decision was five-to-four, so that
            the precedent may or may not be stable for future
            application.
                    \17\ E.g., Guaranty Trust Co. v. York, 326 U.S. 99
            (1945).
                    \18\ E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356
            U.S. 525 (1958).
                    \19\ 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
[P. 788, add to n.1105:]
                A restrained reading of McCardle is strongly suggested
            by Felker v. Turpin, 116 S. Ct. 2333 (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. 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
[Pp. 798-99, add to n.1161:]
                But in Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712
            (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.
Habeas Corpus
[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, \20\ 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

[[Page 25]]

            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. \21\
---------------------------------------------------------------------------

                    \20\ 506 U.S. 390 (1993).
                    \21\ 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, \22\ 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.'' \23\ 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.'' \24\
---------------------------------------------------------------------------

                    \22\ 513 U.S. 298 (1995).
                    \23\ 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).
                    \24\ 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, \25\ 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

[[Page 26]]

            upheld in Felker v. Turpin. \26\ 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[.]'' \27\
---------------------------------------------------------------------------

                    \25\ P. 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.
                    \26\ 116 S. Ct. 2333 (1996).
                    \27\ The amended 28 U.S.C. Sec. 2254(d) (emphasis
            supplied). On the constitutionality of this provision, see
            the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th
            Cir. 1996) (en banc).

[[Page 27]]


                             FIRST AMENDMENT

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

                    and with increasing frequency have not been applied
            at all by the Court.

[P. 974, add to n.26 following Lee v. Weisman citation:]
                Zobrest v. Catalina Foothills School 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, 114 S. Ct. 2481 (1994)
            (invalidating law creating special school district for
            village composed exclusively of members of one religious
            sect).
[P. 974, add to text following n.29:]

                    Justice O'Connor has suggested that it is
            inappropriate to try to shoehorn all Establishment cases
            into one test, and has called instead for recognition that
            different contexts may call for different approaches. \1\
            For example, the Justice proposes that cases involving
            government ``speech'' on religious topics be judged by an
            endorsement test that would invalidate government actions
            only if a reasonable observer would perceive the action as
            an endorsement or disapproval of religious belief. \2\
---------------------------------------------------------------------------

                    \1\ Board of Educ. of Kiryas Joel Village v. Grumet,
            114 S. Ct. 2481, 2498-99 (1994).
                    \2\ Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
            (concurring); Allegheny County v. Greater Pittsburgh ACLU,
            492 U.S. 573, 625 (1989) (concurring); Board of Educ. of
            Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2500 (1994)
            (concurring).
---------------------------------------------------------------------------
ESTABLISHMENT OF RELIGION
[P. 977, add to text following n.41:]

                    ``[The] Court has long held that the First Amendment
            reaches more than classic, 18th century establishments.''
            \3\
---------------------------------------------------------------------------

                    \3\ Board of Educ. of Kiryas Joel Village v. Grumet,
            114 S. Ct. 2481, 2494 (1994) (citing Torcaso v. Watkins, 367
            U.S. 488, 492-95 (1961)).
---------------------------------------------------------------------------
Financial Assistance to Church-Related Institutions
[P. 984, add to text following n.74:]

                    On the other hand, public payment of a sign-language
            interpreter for a deaf student attending parochial school
            created no such

[[Page 28]]

            effects or entanglement problems, the Court ruled in a later
            case, since this was not an expense that the parochial
            school would otherwise have borne, and since the interpreter
            had no role in selecting or editing the content of the
            educational and religious lessons. \4\ Aguilar and Grand
            Rapids are now tenuous at best, five Justices having
            recently expressed the opinion that the cases should be
            overruled or at least reconsidered. \5\
---------------------------------------------------------------------------

                    \4\ Zobrest v. Catalina Foothills School Dist., 509
            U.S. 1 (1993).
                    \5\ See Board of Educ. of Kiryas Joel Village v.
            Grumet, 114 S. Ct. 2481 (1994). Four Justices advocated
            outright overruling: Justice O'Connor, id. at 2498 (Aguilar
            erroneously requires ``disfavoring'' of religion and should
            be reconsidered) (concurring opinion); and Justice Scalia,
            joined by Chief Justice Rehnquist and Justice Thomas, Id. at
            2514-15 (dissenting opinion). Justice Kennedy stated that
            the cases ``may have been erroneous,'' and advocated
            reconsideration. Id. at 2505 (concurring opinion).
---------------------------------------------------------------------------
[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 School
            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.
[P. 997, change heading to:]
Access of Religious Groups to Public 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; \6\ public colleges may not exclude
            student religious organizations from benefits otherwise
            provided to a full spectrum of student ``news, information,
            opinion, entertainment, or academic communications media
            groups;'' \7\ and a state that creates a traditional public
            forum for citizen speeches and unattended displays on a
            plaza at its state capitol cannot, on Establishment Clause
            grounds, deny access for a religious display. \8\ These
            cases make clear that the Establishment Clause does not

[[Page 29]]

            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.
---------------------------------------------------------------------------

                    \6\ Lamb's Chapel v. Center Moriches School 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.
                    \7\ Rosenberger v. University of Virginia, 115 S.
            Ct. 2510 (1995).
                    \8\ Capitol Square Review Bd. v. Pinette, 115 S. Ct.
            2440 (1995).
---------------------------------------------------------------------------
[P. 1002, add new heading following n.163:]
Religious Displays on Government Property
[P. 1004, add new paragraph at end of section:]

                    In Capitol Square Review Bd. v. Pinette, \9\ 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 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.
---------------------------------------------------------------------------

                    \9\ 115 S. Ct. 2440 (1995). The Court was divided 7-
            2 on the merits of Pinette, a vote that obscured continuing
            disagreement over 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'' (id. at
            2471), 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, \10\
            invalidated a New York law creating a special school
            district for an incorporated village

[[Page 30]]

            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 nonreligious groups.
---------------------------------------------------------------------------

                    \10\ 114 S. Ct. 2481 (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.
            114 S. Ct. at 2488.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
[P. 1007, add to n.188:]
                Board of Educ. of Kiryas Joel Village v. Grumet, 114 S.
            Ct. 2481, 2492-93 (1994) (``accommodation is not a principle
            without limits;'' one limitation is that ``neutrality as
            among religions must be honored'').
Free Exercise Exemption From General Governmental
    Requirements


[P. 1018, add new paragraph following n.253:]

                    The political processes were soon utilized in an
            attempt to provide additional protection for religious
            exercise. In the Religious Freedom Restoration Act of 1993,
            \11\ Congress sought to supersede Smith and substitute a
            statutory rule of decision. The Act provides 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.'' \12\ Enactment of the Religious Freedom
            Restoration Act does not, however, close the book on Smith.
            Issues concerning the RFRA's constitutionality ensure
            continuing litigation over the appropriate constitutional
            test. \13\
---------------------------------------------------------------------------

                    \11\ Pub. L. 103-141, 107 Stat. 1488 (1993); 42
            U.S.C. Sec. Sec. 2000bb to 2000bb-4.
                    \12\ Pub. L. 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).
                    \13\ See, e.g., Flores v. City of Boerne, 877 F.
            Supp. 355 (W.D. Tex. 1995) (holding the RFRA
            unconstitutional); and Canedy v. Boardman, 16 F.3d 183, 186
            n.2 (7th Cir. 1994) (dictum that the constitutionality of
            the RFRA--not before the court--``raises a number of
            questions involving the extent of Congress's powers under
            Section 5 of the Fourteenth Amendment''). For an overview of
            these issues, see Scott C. Idleman, The Religious Freedom
            Restoration Act: Pushing the Limits of Legislative Power, 73
            Tex. L. Rev. 247 (1994). For arguments pro and con, compare
            Douglas Laycock, The Religious Freedom Restoration Act, 1993
            B.Y.U. L. Rev. 221 with Christopher L. Eisgruber and
            Lawrence G. Sager, Why the Religious Freedom Restoration Act
            is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994).
---------------------------------------------------------------------------

[[Page 31]]

[P. 1018, add new note 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.'' \14\
---------------------------------------------------------------------------

                    \14\ 508 U.S. 520, 531 (1993).
---------------------------------------------------------------------------
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and 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. \15\ This leads to a ``state action'' (or
            ``governmental action'') limitation similar to that
            applicable to the Fourteenth Amendment. \16\ 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.'' \17\ 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.''
            \18\ The rela-

[[Page 32]]

            tionship of the government to broadcast licensees affords
            other opportunities to explore the breadth of ``governmental
            action.'' \19\
---------------------------------------------------------------------------

                    \15\ Through interpretation of the Fourteenth
            Amendment, the prohibition extends to the States as well.
            See discussion on incorporation, main text, pp. 957-64.
                    \16\ See discussion on state action, main text, pp.
            1786-1802.
                    \17\ CBS v. Democratic Nat'l Comm., 412 U.S. 94, 115
            (1973) (opinion of Chief Justice Burger).
                    \18\ Lebron v. National R.R. Passenger Corp., 115 S.
            Ct. 961, 971 (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. ``It 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.''
            115 S. Ct. at 971.
                    \19\ 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
--Imposition of Consequences for Holding Certain Beliefs
[P. 1054, add to n.181 following cite 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 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. \20\ 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

[[Page 33]]

            not involving ``a trespass on the organization's message
            itself.'' \21\ 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.'' \22\
---------------------------------------------------------------------------

                    \20\ 115 S. Ct. 2338 (1995).
                    \21\ Id. at 2351.
                    \22\ Id.
---------------------------------------------------------------------------
--Political Association
[P. 1063, add to text before first full paragraph on page:]

                    In 1996 the Court extended Branti and Finkel to
            protect independent government contractors. \23\
---------------------------------------------------------------------------

                    \23\ O'Hare Truck Serv., Inc. v. City of Northlake,
            116 S. Ct. 2353 (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, 116 S. Ct. 2342 (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 That 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, \24\ 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. \25\
            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

[[Page 34]]

            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. \26\
---------------------------------------------------------------------------

                    \24\ 115 S. Ct. 1003 (1995).
                    \25\ 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.''
                    \26\ 115 S. Ct. at 1018.
---------------------------------------------------------------------------
--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.'' \27\
---------------------------------------------------------------------------

                    \27\ Board of County Comm'rs v. Umbehr, 116 S. Ct.
            2342, 2346 (1996).
---------------------------------------------------------------------------
[P. 1089, add to n.116:]
                In Waters v. Churchill, 114 S. Ct. 1878 (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. 1097, add to n.150:]
                See also Colorado Republican Campaign Comm. v. FEC, 116
            S. Ct. 2309 (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).
Governmental Regulation of Communications Industries
--Commercial Speech
[P. 1116, add to n.12:]
                Shapero was distinguished in Florida Bar v. Went For It,
            Inc., 115 S. Ct. 2371 (1995), a 5-4 decision upholding a
            prohibition on targeted direct-mail solicitations to victims
            and their relatives for a 30-day period following an
            accident or disaster. The ban struck down in Shapero was far
            broader, both in scope and in duration, the Court explained,
            and was not supported, as Florida's was, by findings
            describing the harms to be prevented by the ban. Dissenting
            Justice Kennedy disagreed that there was a valid
            distinction, pointing out the Court's previous reliance on
            the mode of communication (in-person solicitation versus
            mailings) as ``mak[ing] all the difference.'' 115 S. Ct. at
            2382 (quoting Shapero, 486 U.S. at 475).

[[Page 35]]

[P. 1116, add to text following n.13:]

                    , or prohibit a certified public accountant from
            holding herself out as a certified financial planner. \28\
---------------------------------------------------------------------------

                    \28\ Ibanez v. Florida Bd. of Accountancy, 114 S.
            Ct. 2084 (1994) (also ruling that Accountancy Board could
            not reprimand the CPA, who was also a licensed attorney, for
            truthfuly 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. \29\ 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.'' \30\
---------------------------------------------------------------------------

                    \29\ Edenfield v. Fane, 507 U.S. 761, 775 (1993).
                    \30\ Id. at 1803.
---------------------------------------------------------------------------
[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 cite:]
                Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (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.'' 115 S. Ct. at 1591.
[P. 1118, add to n.20 following Bolger cite:]
                Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (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 ag-

[[Page 36]]

            gregate effects, and does not limit its consideration to
            effects on the challenging litigant. \31\
---------------------------------------------------------------------------

                    \31\ 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 cite:]
                Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (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., \32\ 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. \33\ 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.'' \34\ On the other
            hand, 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. \35\ The
            prohibition ``directly served'' the congressional interest,
            and could be applied to a broadcaster whose principal
            audience was in

[[Page 37]]

            an adjoining lottery state, and who sought to run ads for
            that state's lottery. \36\
---------------------------------------------------------------------------

                    \32\ 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.
                    \33\ Id. at 1514.
                    \34\ Id. at 1515. 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 1510.
                    \35\ United States v. Edge Broadcasting Co., 509
            U.S. 418 (1993).
                    \36\ Id. at 2704.
---------------------------------------------------------------------------

                    In a 1986 decision the Court asserted that ``the
            greater power to completely ban casino gambling necessarily
            includes the lesser power to ban advertising of casino
            gambling.'' \37\ Subsequently, however, the Court has
            eschewed reliance on Posadas, \38\ 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, \39\
            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.'' \40\ 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. \41\
---------------------------------------------------------------------------

                    \37\ 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.
                    \38\ In Rubin v. Coors Brewing Co., 115 S. Ct. 1585
            (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.
                    \39\ 116 S. Ct. 1495 (1996).
                    \40\ 116 S. Ct. at 1511-14 (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 1512.
                    \41\ 116 S. Ct. at 1522 (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. \42\ The rule

[[Page 38]]

            against prior restraints may be inapplicable, \43\ and
            disseminators of commercial speech are not protected by the
            overbreadth doctrine. \44\
---------------------------------------------------------------------------

                    \42\ 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 rather as a content limitation.
                    \43\ Virginia State Bd. of Pharmacy v. Virginia
            Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976);
            Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447
            U.S. 557, 571 n.13 (1980).
                    \44\ Bates v. State Bar of Arizona, 433 U.S. 350,
            379-81 (1977); Central Hudson Gas & Electric Co. v. Public
            Service Comm'n, 477 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. \45\ 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 \46\ may be more likely to
            pass the test \47\ than regulations designed to implement
            general health, safety, or moral concerns. \48\ As the
            governmental interest becomes further

[[Page 39]]

            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. \49\
---------------------------------------------------------------------------

                    \45\ 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).
                    \46\ 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct.
            1495, 1507 (1996) (opinion of Justice Stevens, joined by
            Justices Kennedy and Ginsburg).
                    \47\ 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'').
                    \48\ 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., 115 S. Ct. 2371, 2379
            (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., 115 S.
            Ct. 1585 (1995) (striking down federal statute prohibiting
            display of alcohol content on beer labels) and 44
            Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996)
            (striking down state law prohibiting display of retail
            prices in ads for alcoholic beverages).
                    \49\ 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., 115 S. Ct. 1585, 1595 (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, 116 S. Ct. 1495, 1507 (1996) (a portion of the
            opinion joined by Justices Kennedy and Ginsburg).
---------------------------------------------------------------------------
--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, 115 S. Ct.
            2338 (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. \50\
            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. \51\ Cable
            does, however, have unique characteristics that justify
            regulations that single out cable for special

[[Page 40]]

            treatment. \52\ The Court in Turner Broadcasting System v.
            FCC \53\ 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.'' \54\ The regulations could therefore be
            measured by the ``intermediate level of scrutiny'' set forth
            in United States v. O'Brien. \55\ 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, \56\ found it unnecessary to determine
            whether strict scrutiny or some lesser standard applies,
            since 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, \57\ and a plurality \58\
            rejected assertions that public forum analysis, \59\ or a
            rule giving cable operators' editorial rights ``general
            primacy'' over the rights of programmers and viewers, \60\
            should govern.
---------------------------------------------------------------------------

                    \50\ 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, 114 S. Ct. 2445, 2456 (1994).
                    \51\ Turner Broadcasting System v. FCC, 114 S. Ct.
            2445, 2456-57 (1994).
                    \52\ Id. at 2468 (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).
                    \53\ 114 S. Ct. 2445 (1994).
                    \54\ Id. at 2460. ``Deciding whether a particular
            regulation is content-based or content-neutral is not always
            a simple task,'' the Court confessed. Id. at 2459. Indeed,
            dissenting Justice O'Connor, joined by Justices Scalia,
            Ginsburg, and Thomas, viewed the rules as content-based. Id.
            at 2475-79.
                    \55\ 391 U.S. 367, 377 (1968). The Court remanded
            Turner for further factual findings relevant to the O'Brien
            test.
                    \56\ 116 S. Ct. 2374, 2391 (1996) (invalidating
            Sec. 10(b) of the Cable Television Consumer Protection and
            Competition Act of 1992).
                    \57\ 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.
                    \58\ This section of Justice Breyer's opinion was
            joined by Justices Stevens, O'Connor, and Souter. 116 S. Ct.
            at 2384.
                    \59\ Justice Kennedy, joined by Justice Ginsburg,
            advocated this approach. 116 S. Ct. at 2409, and took the
            plurality to task for its ``evasion of any clear legal
            standard.'' Id. at 2405.
                    \60\ Justice Thomas, joined by Chief Justice
            Rehnquist and Justice Scalia, advocated this approach.

---------------------------------------------------------------------------

[[Page 41]]

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 2199. R.A.V. was distinguished 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 2201. 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 apply, 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 2786.
--Nonobscene 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, 116 S. Ct. 2374, 2391
            (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/viewing interests to be considered either
            narrowly or reasonably tailored to serve the government's
            compelling interest in protecting children.
Speech Plus
--The Public Forum
[P. 1167, add to n.98 following cite to Niemotko v.
    Maryland:]
                Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440
            (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, 115 S. Ct. 2510 (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

[[Page 42]]

            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).
--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, \61\ the Court refined principles
            governing issuance of ``content-neutral'' injunctions that
            restrict expressive activity. \62\ 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.'' \63\ 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.'' \64\
            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. \65\
---------------------------------------------------------------------------

                    \61\ 114 S. Ct. 2516 (1994).
                    \62\ 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. Id. at 2523.
                    \63\ Id. at 2525.
                    \64\ Id. at 2524-25.
                    \65\ Referring to Frisby v. Schultz, 487 U.S. 474
            (1988).

---------------------------------------------------------------------------

[[Page 43]]

                    Different types of issues were presented by Hurley
            v. Irish-American Gay Group, \66\ 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.'' \67\
---------------------------------------------------------------------------

                    \66\ 115 S. Ct. 2338 (1995).
                    \67\ Id. at 2347.
---------------------------------------------------------------------------
Leafleting, Handbilling, and the Like
[P. 1181, add to text after n.168:]

                    Talley's anonymity rationale was strengthened in
            McIntyre v. Ohio Elections Comm'n, \68\ 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.
---------------------------------------------------------------------------

                    \68\ 115 S. Ct. 1511 (1995).
---------------------------------------------------------------------------
[P. 1181, substitute for first full paragraph on page:]

                    The handbilling cases were distinguished in City
            Council v. Taxpayers for Vincent, \69\ 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 not restricting 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. \70\ Ten years later, how-

[[Page 44]]

            ever, 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. \71\ Prohibiting homeowners from
            displaying political, religious, or personal messages on
            their own property entirely foreclosed ``a venerable means
            of communication that is unique and important,'' and that is
            ``an unusually cheap form of communication'' without viable
            alternatives for many residents. \72\ 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. \73\
---------------------------------------------------------------------------

                    \69\ 466 U.S. 789 (1984).
                    \70\ 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.
                    \71\ City of Ladue v. Gilleo, 114 S. Ct. 2038
            (1994).
                    \72\ Id. at 2045, 2046.
                    \73\ Id. at 2045. Ladue's legitimate interest in
            reducing visual clutter could be addressed by ``more
            temperate'' measures, the Court suggested. Id. at 2047.

[[Page 45]]


                            SECOND AMENDMENT

[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 117
            S. Ct. 276 (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'').

[[Page 47]]


                                                        FOURTH AMENDMENT



History and Scope of the Amendment
--The Interest Protected
[P. 1206, add to 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. 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, 116 S. Ct. 1657 (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. 1227, add to text following sentence containing n.158:]

                    In Wilson v. Arkansas, \2\ the Court determined that
            the common law ``knock and announce'' rule is an element of
            the Fourth Amendment reasonableness inquiry. The rule does
            not, however, require announcement under all circumstances.
            The presumption in favor of announcement 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,

[[Page 48]]

            and those in which officers have reason to believe that
            destruction of evidence is likely.
---------------------------------------------------------------------------

                    \2\ 115 S. Ct. 1914 (1995).
---------------------------------------------------------------------------
Valid Searches and Seizures Without Warrants
--Detention Short of Arrest--Stop-and-Frisk
[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. \3\ 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. \4\
---------------------------------------------------------------------------

                    \3\ Minnesota v. Dickerson, 508 U.S. 366 (1993).
                    \4\ Id. at 2237, 2139. 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.
---------------------------------------------------------------------------
--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, 116 S. Ct. 2485, 2487
            (1996).
[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'' \5\ of traffic or safety violation or
            some other criminal activity. \6\
---------------------------------------------------------------------------

                    \5\ 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.
                    \6\ 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, 116 S.
            Ct. 1769 (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.

---------------------------------------------------------------------------

[[Page 49]]

--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 \7\ 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.'' \8\ 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.'' \9\ 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. 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. \10\
---------------------------------------------------------------------------

                     \7\ 115 S. Ct. 2386 (1995).
                     \8\ Id. at 2394-95.
                     \9\ Id. at 2395.
                    \10\ Id. at 2396.
---------------------------------------------------------------------------
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, 115 S. Ct. 1185 (1995).

[[Page 50]]

--Operation of the Rule: Standing
[P. 1270, add to n.229 following cite 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).

[[Page 51]]


                             FIFTH AMENDMENT

RIGHTS OF PERSONS
DOUBLE JEOPARDY
Development and Scope
[P. 1282, n.59, delete citation to One Lot Emerald Cut
    Stones case:]
[P. 1283, n.60, delete reference to 89 Firearms case and
    add:]
                Montana Dep't of Revenue v. Kurth Ranch, 114 S. Ct. 1937
            (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\
---------------------------------------------------------------------------

                    \1\ United States v. Ursery, 116 S. Ct. 2135 (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.
---------------------------------------------------------------------------
Reprosecution Following Acquittal
--Acquittal by Jury
[P. 1290, add note to end of first sentence in section:]
                What constitutes a jury acquittal may occasionally be
            uncertain. In Schiro v. Farley, 114 S. Ct. 783 (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.

[[Page 52]]

``For the Same Offence''
--Legislative Discretion as to Multiple Sentences
[P. 1299, add to n.142:]
                But cf. Rutledge v. United States, 116 S. Ct. 1241
            (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. \2\ That interpretation held sway only
            three years, however, before being repudiated as ``wrong in
            principle [and] unstable in application.'' \3\
---------------------------------------------------------------------------

                    \2\ 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.
                    \3\ 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. \4\
---------------------------------------------------------------------------

                    \4\ Witte v. United States, 115 S. Ct. 2199, 2204
            (1995) (consideration of defendant's alleged cocaine
            dealings in determining sentence for marijuana offenses does
            not bar subsequent prosecution on cocaine charges).

---------------------------------------------------------------------------

[[Page 53]]

SELF-INCRIMINATION
Development and Scope
[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).
Confessions: Police Interrogation, Due Process, and Self-
    Incrimination
--Miranda v. Arizona
[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, \5\ such a course was squarely rejected in 1993. The
            Stone v. Powell \6\ 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 Miranda claim, the Court ruled in
            Withrow v. Williams. \7\ The Miranda rule differs from the
            Mapp v. Ohio \8\ 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. \9\ 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.
            \10\
---------------------------------------------------------------------------

                     \5\ 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.
                     \6\ 428 U.S. 465 (1976).
                     \7\ 507 U.S. 680 (1993).
                     \8\ 367 U.S. 643 (1961).
                     \9\ 507 U.S. at 691-92.
                    \10\ Id. at 693.

---------------------------------------------------------------------------

[[Page 54]]

[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. \11\
---------------------------------------------------------------------------

                    \11\ Stansbury v. California, 114 S. Ct. 1526
            (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.
            \12\
---------------------------------------------------------------------------

                    \12\ Davis v. United States, 114 S. Ct. 2350 (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, \13\ the Court held that the
            rule of Stone v. Powell, \14\ 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.
---------------------------------------------------------------------------

                    \13\ 507 U.S. 680 (1993).
                    \14\ 428 U.S. 465 (1976). See main text, pp. 1265-
            66.
---------------------------------------------------------------------------
DUE PROCESS
Substantive Due Process
--Discrimination
[P. 1357, add to n.71:]
                Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097,
            2106-08 (1995).
[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).

[[Page 55]]

--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, \15\ those decisions have recently been
            distinguished, and their precedential value limited. \16\ 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.' '' \17\
            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.'' \18\
---------------------------------------------------------------------------

                    \15\ 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).
                    \16\ 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, 114 S. Ct. 2018, 2024 (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.
                    \17\ 114 S. Ct. 2018, 2022 (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. 114 S. Ct. at 2024.
                    \18\ 114 S. Ct. at 2023.
---------------------------------------------------------------------------
--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).

[[Page 56]]

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. 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.'' \19\ 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. \20\ Seven years
            later, however, the Court announced in Dolan v. City of
            Tigard \21\ that 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 permit
            conditions and the developmental impacts at which they are
            aimed. \22\ The Court ruled in Dolan that

[[Page 57]]

            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. In general, the requisite nexus existed between the
            city's interest in flood control and imposition of an
            easement restricting development in the floodplain, and
            between the city's interest in minimizing traffic congestion
            and the required bike path dedication. The floodplain
            easement, however, went beyond a mere building restriction;
            it also contained a recreational component that deprived the
            property owner of the right to exclude others from her land.
            Because the city had not said ``why a public greenway, as
            opposed to a private one, was required in the interest of
            flood control,'' \23\ the Court concluded that the city had
            failed to establish ``the required reasonable relationship''
            for this component of the easement. \24\ Similarly, the city
            had not adequately demonstrated a reasonable relationship
            between the bikepath dedication requirement and the
            additional vehicle and bicycle trips that would be generated
            by the applicant's development. \25\
---------------------------------------------------------------------------

                    \19\ 483 U.S. at 842.
                    \20\ 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.
                    \21\ 114 S. Ct. 2309 (1994). This was a 5-4
            decision. Chief Justice Rehnquist's opinion of the Court was
            joined by Justices O'Connor, Scalia, Kennedy, and Thomas.
            Justices Blackmun and Ginsburg joined Justice Stevens'
            dissenting opinion, and Justice Souter added a dissenting
            opinion.
                    \22\ Id. at 2319-20. 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 2326. 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 2320
            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 2319. Note, however, that
            the Court stated its holdings in terms of lack of
            ``reasonable relationship,'' rather than lack of ``rough
            proportionality.''
                    \23\ Id. at 2320.
                    \24\ Id. at 2321. This conclusion, Justice Souter
            pointed out in dissent, sounds very much like ``an
            application of Nollan's nexus analysis.'' Id. at 2330.
                    \25\ 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 2322.

[[Page 59]]


                             SIXTH AMENDMENT

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
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 has 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\
---------------------------------------------------------------------------

                    \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, 115 S. Ct. 2310 (1995).
                    \4\ Gaudin, 115 S. Ct. at 2320.
---------------------------------------------------------------------------
--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.
            \5\
---------------------------------------------------------------------------

                    \5\ Lewis v. United States, 116 S. Ct. 2163 (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).

[[Page 60]]

ASSISTANCE OF COUNSEL
Development of an Absolute Right to Counsel
--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, \6\ 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. \7\
---------------------------------------------------------------------------

                    \6\ 506 U.S. 364 (1993).
                    \7\ 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).

[[Page 61]]


                            SEVENTH AMENDMENT

CIVIL TRIALS
TRIAL BY JURY IN CIVIL CASES
Application of the Amendment
--Cases ``at Common Law''
[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., 116 S.
            Ct. 1384 (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., 116 S. Ct. 2211 (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).

[[Page 63]]

                                        AMENDMENT 8--PUNISHMENT FOR CRIME


                            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.
---------------------------------------------------------------------------
CRUEL AND UNUSUAL PUNISHMENT
--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, 115 S. Ct.
            1031 (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, 114 S. Ct. 2630 (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. 1481, add to n.82:]
                Romano v. Oklahoma, 114 S. Ct. 2004 (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).

[[Page 64]]

[P. 1483, add new note following period after word
    ``considered'' in 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 note 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.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, 116 S. Ct. 283 (1995).
[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. \2\
---------------------------------------------------------------------------

                    \2\ 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).
---------------------------------------------------------------------------
[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).

[[Page 65]]


                             TENTH AMENDMENT

RESERVED POWERS
Effect of Provisions on Federal Powers
--Federal Police Powers
[P. 1514, add to text following first sentence in paragraph
    starting after n.42:]

                    More recently, the Court 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. \1\
---------------------------------------------------------------------------

                    \1\ United States v. Lopez, 115 S. Ct. 1624, 1633-34
            (1995).

[[Page 67]]


                           ELEVENTH AMENDMENT

State Immunity
Suits Against States
--The Nature of the States' Immunity
[P. 1527, add to n.33:]
                Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114,
            1127-28 (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, 116 S. Ct. 1114, 1170-71 (1996) (Justice Souter
            dissenting).
[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, \1\
            that Congress lacks the power under Article I to abrogate
            state immunity under the Eleventh Amendment. That too,
            however, was a 5-4 decision, with the four dissenting
            Justices believing that Hans was wrongly decided. \2\
---------------------------------------------------------------------------

                    \1\ 116 S. Ct. 1114 (1996).
                    \2\ Chief Justice Rehnquist wrote the opinion of the
            Court, 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.
---------------------------------------------------------------------------
--Congressional Withdrawal of Immunity
[P. 1535, delete last sentence of first paragraph and
    substitute the following new paragraph:]

                    Pennsylvania v. Union Gas lasted less than seven
            years, the Court overruling it in Seminole Tribe of Florida
            v. Florida. \3\ Chief Justice Rehnquist, writing for a 5-4
            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].'' \4\

[[Page 68]]

            In the majority's view, Union Gas had deviated from a line
            of cases tracing back to Hans v. Louisiana \5\ that viewed
            the Eleventh Amendment as implementing the ``fundamental
            principle of sovereign immunity [that] limits the grant of
            judicial authority in Article III.'' \6\ 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.'' \7\ Section 5 of the Fourteenth Amendment,
            of course, is another matter. Fitzpatrick v. Bitzer, \8\
            ``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. \9\
---------------------------------------------------------------------------

                    \3\ 116 S. Ct. 1114 (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).
                    \4\ 116 S. Ct. at 1127.
                    \5\ 134 U.S. 1 (1890).
                    \6\ 116 S. Ct. at 1127-28 (quoting Pennhurst State
            School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984).
                    \7\ Id. at 1131-32. 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 soverign 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.'' 116 S. Ct. at
            1153. 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 1173.
                    \8\ 427 U.S. 445 (1976).
                    \9\ 116 S. Ct. at 1128.

[[Page 69]]


                          FOURTEENTH AMENDMENT

DUE PROCESS
RIGHTS GUARANTEED
DUE PROCESS OF LAW
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.
            \1\
---------------------------------------------------------------------------

                    \1\ Bennis v. Michigan, 116 S. Ct. 994 (1996).
---------------------------------------------------------------------------
Procedure in Taxation
--Sufficiency of Remedy
[P. 1665, add to n.177:]
                See also Reich v. Collins, 115 S. Ct. 547 (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).
PROCEDURAL DUE PROCESS: CIVIL
Power of the State 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 those reasonably necessary to
            vindicate a state's interest in deterring unlawful conduct.
            \2\ These limits may

[[Page 70]]

            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.
            \3\
---------------------------------------------------------------------------

                    \2\ BMW v. Gore, 116 S. Ct. 1589 (1996) (holding
            that a $2 million judgement 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).
                    \3\ BMW v. Gore, 116 S. Ct. at 1589 (1996).
---------------------------------------------------------------------------
Jurisdiction
[P. 1716, change heading:]
--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: Entitlement and Positivist
    Recognition
[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. \4\
---------------------------------------------------------------------------

                    \4\ Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995)
            (solitary confinement not atypical ``in relation to the
            ordinary incidents of prison life'').
---------------------------------------------------------------------------
--The Requirements of Due Process
[P. 1741, add to n.269:]
                See also Richards v. Jefferson County, 116 S. Ct. 1761
            (1996) (res judicata may not apply where taxpayer who
            challenged a county's occupation tax was not informed of
            prior case and where taxpayer interests were not adequately
            protected).
PROCEDURAL DUE PROCESS: CRIMINAL
The Elements of Due Process
--Initiation of 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, 114 S. Ct.
            807 (1994) (holding that there is no civil rights action
            based on the Fourteenth Amendment for arrest and imposition
            of bond without probable cause).

[[Page 71]]

--Fair Trial
[P. 1756, add to n.59:]
                But see Montana v. Egelhoff, 116 S. Ct. 2013 (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, 116 S. Ct. 7 (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).
--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.)
[P. 1764, add to n.96:]
                The Court has held, however, that for purposes of a
            recidivism-based sentence enhancement where a prosecutor
            carries the burden of establishing a prior conviction, a
            defendant can be required to bear the burden of production
            in challenging the validity of such conviction. See Parke v.
            Raley, 506 U.S. 20 (1992) (a sentencing court considering a
            guilty plea in prior case may rely upon a presumption of
            regularity during that proceeding).
[P. 1765, add to n.104 after Spencer v. Texas cite:]
                Parke v. Raley, 506 U.S. 20 (1992).
--The Problem of the Incompetent of Insane Defendant of
    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,
            116 S. Ct. 1373 (1996).
--Corrective Process: Appeals and Other Remedies
[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, 116 S. Ct. 2174 (1996) (no
            requirement that the State ``enable [a] prisoner to discover
            grievances, and to litigate effectively'').

[[Page 72]]

TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND
    RELATED EXERCISES OF THE POLICE POWERS
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.
EQUAL PROTECTION AND RACE
Permissible Remedial Utilization 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 \5\ 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.'' \6\
---------------------------------------------------------------------------

                    \5\ 115 S. Ct. 2097 (1995). This was a 5-4 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.
                    \6\ 115 S. Ct. at 2113 (emphasis original).

---------------------------------------------------------------------------

[[Page 73]]

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., \7\ 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 genderbased exclusion of jurors
            would undermine the litigants' interest by tainting the
            proceedings, and in addition would harm the wrongfully
            excluded juror.
---------------------------------------------------------------------------

                    \7\ 511 U.S. 127 (1994).
---------------------------------------------------------------------------
[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 style institution. \8\ 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.
---------------------------------------------------------------------------

                    \8\ United States v. Virginia, 116 S. Ct. 2264
            (1996).

---------------------------------------------------------------------------

[[Page 74]]

Fundamental Interests: The Political Process
--Apportionment and Districting
[P. 1905, add to n.157 after cite 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% intended to
            preserve political subdivision boundaries).
[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. \9\ 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, \10\ although a plurality of the 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. \11\
---------------------------------------------------------------------------

                    \9\ Miller v. Johnson, 115 S. Ct. 2475 (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).
                    \10\ Id.; Shaw v. Reno, 509 U.S. 630 (1993). See
            also Shaw v. Hunt, 116 S.Ct. 1894 (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).
                    \11\ Bush v. Vera, 116 S. Ct. 1941, 1961 (1996)
            (opinion of Justice O'Connor, joined by Chief Justice
            Rehnquist and Justice Kennedy) (also involving congressional
            districts).
---------------------------------------------------------------------------
[P. 1916, add new heading and text following n.24:]
Sexual Orientation

                    In Romer v. Evans, \12\ 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. \13\ The Court also rejected the
            application of

[[Page 75]]

            the heightened standard reserved for suspect classes, and
            sought only to establish whether the legislative
            classification had a rational relation to a legitimate end.
---------------------------------------------------------------------------

                    \12\ 116 S. Ct. 1620 (1996).
                    \13\ 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.'' \14\ 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.
---------------------------------------------------------------------------

                    \14\ 116 S.Ct. at 1628, quoting Department of
            Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

[[Page 77]]


                         TWENTY-FIRST AMENDMENT

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\ 116 S. Ct. 1495 (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\ Id. at 1514 (quoting Capital Cities Cable, Inc.,
            v. Crisp, 467 U.S. 691, 712 (1984)).
                    \4\ Id.

[[Page 79]]

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

128. Act of August 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., 115 S. Ct.
                                    1585 (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., 116 S. Ct.
                                    1793 (1996).

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

                                Justices dissenting: Kennedy, Ginsburg.

130. Act of May 11, 1976 (Pub. L. 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, 116 S. Ct. 2309 (1996).

                                Justices concurring: Breyer, O'Connor
                                    and Souter.

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

                                Justices dissenting: Stevens and
                                    Ginsburg.

131. Act of Oct. 17, 1988 (Pub. L. 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

[[Page 80]]

            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,
                                    116 S. Ct. 1114 (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. 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, 115 S. Ct. 1003
                                    (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. 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, 115 S. Ct. 1624
                                    (1995).

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

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

134. Act of Dec. 19, 1991 (Pub. L. 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., 115 S.
                                    Ct. 1447 (1995).

[[Page 81]]

                                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. 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, 116 S. Ct. 2374 (1996).

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

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

STATE ACTS AND ORDINANCES HELD UNCONSTITUTIONAL

[[Page 83]]


                    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 & 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 v. Oregon Dep't of Environmental Quality, 114
        S. Ct. 1345 (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, 114 S. Ct. 1815 (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

[[Page 84]]

            aggregate tax burden on interstate commerce than on
            intrastate commerce.


1095. Montana Dep't of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (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, 114 S. Ct. 2331 (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, 114 S. Ct. 2481
        (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.


[[Page 85]]



1099. American Airlines v. Wolens, 115 S. Ct. 817 (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, 115 S. Ct. 1511 (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, 115 S. Ct. 1842 (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, 115 S. Ct. 2214 (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 falls
            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 115 S. Ct. 2338 (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.


[[Page 86]]


1104. Miller v. Johnson, 115 S. Ct. 2475 (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, Rehnquist,
                                    O'Connor, Scalia, and Thomas.

                                Justices dissenting: Stevens Ginsburg,
                                    Breyer, and Souter.

1105. Fulton Corp. v. Faulkner, 116 S. Ct. 848 (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 of Marion County v. Nelson, 116 S. Ct. 1103 (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, 116 S. Ct. 1495 (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, 116 S. Ct. 1620 (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.


[[Page 87]]



                                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, 116 S. Ct. 1652 (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, 116 S. Ct. 1894 (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, 116 S. Ct. 1941 (1996).

1111. Bush v. Vera, 116 S. Ct. 1941 (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, 116 S. Ct. 2264 (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.

[[Page 89]]

                    ORDINANCES HELD UNCONSTITUTIONAL

125. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
                    The city'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).
                    The city's 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, 114 S. Ct. 1677 (1994).
                    The town's ``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,, 114 S. Ct. 2038 (1994).
                    The city's ordinance, 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.''

[[Page 91]]


        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.
        U.S. 738 (1994).                  222 (1980).
*   207.Hubbard v. United States, 115     United States v. Bramblett,
        S. Ct. 1754 (1995).               348 U.S. 503 (1955).
*   208.Adarand Constructors, Inc. v.     Metro Broadcasting, Inc. v.
        Pena, 115 S. Ct. 2097 (1995).     FCC, 497 U.S. 547 (1990);
                                          Fullilove v. Klutznick, 448
                                          U.S. 448 (1990) (in part).
*   209.United States v. Gaudin, 115      Sinclair v. United States, 279
        S. Ct. 2310 (1995).               U.S. 263 (1929).
*   210.Fulton Corp. v. Faulkner, 116     Darnell v. Indiana, 226 U.S.
        S. Ct. 848 (1996).                390 (1912).
*   211.Seminole Tribe of Florida v.      Pennsylvania v. Union Gas Co.,
        Florida, 116 S. Ct. 1114          491 U.S. 1 (1989).
        (1996).
*   212.44 Liquormart, Inc. v. Rhode      California v. LaRue, 409 U.S.
        Island, 116 S. Ct. 1495           109 (1972) (in part);
        (1996).
                                          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).

[[Page 93]]


                             TABLE OF CASES

44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996)...... 37-39,
                                                              77, 86, 91
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).................. 20
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1996)..... 22, 54, 72,
                                                                      91
Albright v. Oliver, 114 S. Ct. 807 (1994)............................ 70
Alexander v. United States, 509 U.S. 544 (1993).................. 32, 41
Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)
                                                                      27
Allen v. Wright, 468 U.S. 737 (1984)................................. 19
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)......... 6, 10
American Airlines v. Wolens, 513 U.S. 219 (1995).................. 9, 85
Arave v. Creech, 507 U.S. 463 (1993)................................. 63
Arizona v. Evans, 115 S. Ct. 1185 (1995)............................. 49
Associated Industries v. Lohman, 114 S. Ct. 1815 (1994).............. 83
Austin v. United States, 509 U.S. 602 (1993)......................... 63
Baldasar v. Illinois, 446 U.S. 222 (1980)............................ 91
Barclays Bank v. Franchise Tax Bd. of California, 512 U.S. 298
 (1994)............................................................... 8
Barnett Bank of Marion County v. Nelson, 116 S. Ct. 1103 (1996)..... 10,
                                                                      86
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............... 37, 38
Benjamin v. Jacobson, 935 F. Supp. 332 (S.D.N.Y. 1996)............... 19
Bennis v. Michigan, 116 S. Ct. 994 (1996)............................ 69
Blodgett v. Holden, 275 U.S. 142 (1927).............................. 55
BMW v. Gore, 116 S. Ct. 1589 (1996).............................. 69, 70
Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342 (1996)........ 33, 34
Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481
 (1994)....................................................... 27-30, 84
Brecht v. Abrahamson, 507 U.S. 619 (1993)............................ 53
Bush v. Vera, 116 S. Ct. 1941 (1996)............................. 74, 87
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958)............ 24
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).... 6, 7,
                                                                      89
California Dep't of Corrections v. Morales, 514 U.S. 499 (1995)...... 12
California v. LaRue, 409 U.S. 109 (1972)......................... 77, 91
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).............. 11
Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994)...................... 30
Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691 (1984)............ 77
Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440 (1995).... 28, 29,
                                                                      41
Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993)...... 20
CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973)................ 31, 32
Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948).......... 6
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S.
 557 (1980)....................................................... 36-39
Chapman v. California, 386 U.S. 18 (1967)............................ 53
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
 (1993).......................................................... 31, 89
City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)........... 43
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)
                                                                  36, 89
City of Ladue v. Gilleo, 114 S. Ct. 2038 (1994).................. 44, 89
City of Los Angeles v. Preferred Communications, 476 U.S. 488
 (1986).............................................................. 39
City of Newport v. Iacobucci, 479 U.S. 92 (1986)..................... 91
Clements v. Fashing, 457 U.S. 957 (1982)............................. 20
Colorado Republican Campaign Comm. v. FEC, 116 S. Ct. 2309 (1996)
                                                              22, 34, 79
Concrete Pipe & Products v. Construction Laborers Pension Trust,
 508 U.S. 602 (1993)............................................. 55, 56
Cooper v. Oklahoma, 116 S. Ct. 1373 (1996)........................... 71
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)........... 9
Dalton v. Specter, 511 U.S. 462 (1994)........................... 14, 15

[[Page 94]]

Darnell v. Indiana, 226 U.S. 390 (1912).............................. 91
Davis v. United States, 114 S. Ct. 2350 (1994)....................... 54
Delaware v. Prouse, 440 U.S. 648 (1979).............................. 48
Denver Area Educ. Tel. Consortium v. FCC, 116 S. Ct. 2374 (1996)
                                                              40, 41, 81
Department of Agriculture v. Moreno, 413 U.S. 528 (1973)............. 75
Department of Taxation & Finance v. Milhelm Attea & Bros., 512
 U.S. 61 (1994)...................................................... 10
Department of Treasury v. Fabe, 508 U.S. 491 (1993)............... 9, 83
District of Columbia v. Greater Washington Bd. of Trade, 506 U.S.
 125 (1992)........................................................... 9
Doctor's Associates, Inc. v. Casarotto, 116 S. Ct. 1652 (1996)... 10, 87
Dolan v. City of Tigard, 114 S. Ct. 2309 (1994)...................... 56
Edenfield v. Fane, 507 U.S. 761 (1993)....................... 35, 36, 83
Evans v. Romer, 854 P.2d 1270 (Colo. 1993)........................... 74
Ex parte Virginia, 100 U.S. 339 (1880)............................... 31
Farmer v. Brennan, 511 U.S. 825 (1994)............................... 64
FCC v. Beach Communications, 508 U.S. 307 (1993)................. 54, 72
FDIC v. Meyer, 510 U.S. 471 (1994)................................... 23
Felker v. Turpin, 116 S. Ct. 2333 (1996)..................... 18, 24, 26
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)........................... 68
Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995).......... 30
Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995)......... 34, 38
Frisby v. Schultz, 487 U.S. 474 (1988)............................... 42
Fullilove v. Klutznick, 448 U.S. 448 (1990).......................... 91
Fulton Corp. v. Faulkner, 116 S. Ct. 848 (1996).................. 86, 91
Furman v. Georgia, 408 U.S. 238 (1972)................................ 1
Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967)............. 20
Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211 (1996)
                                                                  23, 61
Goldberg v. Sweet, 488 U.S. 252 (1989)................................ 7
Grady v. Corbin, 495 U.S. 508 (1990)............................. 52, 91
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995)........ 22
Guaranty Trust Co. v. York, 326 U.S. 99 (1945)....................... 23
Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227 (1995)............. 15
Hagen v. Utah, 510 U.S. 399 (1994)................................... 11
Hans v. Louisiana, 134 U.S. 1 (1890)................................. 68
Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993)............. 21
Harris v. Alabama, 115 S. Ct. 1031 (1995)............................ 63
Heiner v. Donnan, 285 U.S. 312 (1932)................................ 55
Helling v. McKinney, 509 U.S. 25 (1993).............................. 64
Herrera v. Collins, 506 U.S. 390 (1993).......................... 24, 64
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)......................... 45
Hill v. Lockhart, 474 U.S. 52 (1985)................................. 60
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).................... 69, 84
Hubbard v. United States, 115 S. Ct. 1754 (1995)..................... 91
Hurley v. Irish-American Gay Group, 115 S. Ct. 2338 (1995)...... 32, 39,
                                                                  43, 85
Ibanez v. Florida Bd. of Accountancy, 114 S. Ct. 2084 (1994)......... 35
In re Winship, 397 U.S. 358 (1970)................................... 59
International Union, UMW v. Bagwell, 512 U.S. 821 (1994)......... 18, 59
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60 (1993)..... 6, 8,
                                                                      12
J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994)............... 73
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510
 U.S. 86 (1993)....................................................... 9
Johnson v. Texas, 509 U.S. 350 (1993)................................ 64
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).............. 22
Kotteakos v. United States, 328 U.S. 750 (1946)...................... 53

[[Page 95]]

Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993)
                                                                  28, 41
Leathers v. Medlock, 499 U.S. 439 (1991)............................. 40
Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961 (1995)....... 31
Lewis v. Casey, 116 S. Ct. 2174 (1996)............................... 71
Lewis v. United States, 116 S. Ct. 2163 (1996)....................... 59
Linda R. S. v. Richard D., 410 U.S. 614 (1973)....................... 19
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)......................... 26
Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977)....... 37
Livadas v. Bradshaw, 512 U.S. 107 (1994)............................. 10
Lockhart v. Fretwell, 506 U.S. 364 (1993)............................ 60
Loving v. United States, 116 S. Ct. 1737 (1996)............... 1, 11, 13
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)........... 20
Lynch v. Donnelly, 465 U.S. 668 (1984)............................... 27
Madsen v. Women's Health Center, 114 S. Ct. 2516 (1994).............. 42
Mapp v. Ohio, 367 U.S. 643 (1961).................................... 53
Markman v. Westview Instruments, Inc., 116 S. Ct. 1384 (1996).... 11, 61
McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995)........ 43, 85
Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996)....................... 9
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)................. 91
Michigan v. Tucker, 417 U.S. 433 (1974).............................. 53
Miller v. Johnson, 115 S. Ct. 2475 (1995)........................ 74, 86
Minnesota v. Dickerson, 508 U.S. 366 (1993).......................... 48
Mississippi v. Louisiana, 506 U.S. 73 (1992)......................... 23
Montana Dep't of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994)..... 51,
                                                                      84
Montana v. Egelhoff, 116 S. Ct. 2013 (1996).......................... 71
Murray v. Carrier, 477 U.S. 478 (1986)............................... 25
New York State Conf. of Blue Cross & Blue Shield Plans v.
 Travelers Ins. Co., 514 U.S. 645 (1995).............................. 9
New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981)......... 91
Nichols v. Coolidge, 274 U.S. 531 (1927)............................. 55
Nichols v. United States, 511 U.S. 738 (1994).................... 60, 91
Nixon v. United States, 506 U.S. 224 (1993).......................... 22
Northeastern Fla. Ch. of the Associated Gen. Contractors v. City
 of Jacksonville, 508 U.S. 656 (1993)............................ 20, 21
O'Hare Truck Serv., Inc. v. City of Northlake, 116 S. Ct. 2353
 (1996).............................................................. 33
O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994)........................ 24
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)............. 35, 38
Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214 (1995)..... 10,
                                                                      85
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175 (1995)
                                                                6, 7, 22
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993)..... 10, 83
One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972)
                                                                      51
Oregon Waste Systems v. Department of Envtl. Quality, 511 U.S. 93
 (1994)........................................................... 7, 83
Ornelas v. United States, 116 S. Ct. 1657 (1996)..................... 47
Parke v. Raley, 506 U.S. 20 (1992)................................... 71
Peacock v. Thomas, 116 S. Ct. 862 (1996)............................. 22
Pennell v. City of San Jose, 485 U.S. 1 (1988)....................... 56
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)...... 68
Pennsylvania v. Labron, 116 S. Ct. 2485 (1996)....................... 48
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)................. 80, 91
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)............. 17, 80
Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986)
                                                                      37
Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712 (1996)............. 24
Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978)
                                                                      20

[[Page 96]]

Reich v. Collins, 115 S. Ct. 547 (1994).............................. 69
Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993)........... 20
Reno v. Flores, 507 U.S. 292 (1993).................................. 11
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995)................ 21
Richards v. Jefferson County, 116 S. Ct. 1761 (1996)................. 70
Richmond v. Lewis, 506 U.S. 40 (1992)................................ 64
Romano v. Oklahoma, 114 S. Ct. 2004 (1994)........................... 63
Romer v. Evans, 116 S. Ct. 1620 (1996)........................... 74, 86
Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995).... 28, 41
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995)............ 35-39, 79
Ryder v. United States, 515 U.S. 177 (1995)...................... 15, 21
Sale v. Haitian Centers Council, 509 U.S. 155 (1993)................. 11
Sandin v. Conner, 115 S. Ct. 2293 (1995)............................. 70
Sawyer v. Whitney, 505 U.S. 333 (1995)............................... 25
Schiro v. Farley, 114 S. Ct. 783 (1994).............................. 51
Schlup v. Delo, 513 U.S. 298 (1995).................................. 25
Scott v. Illinois, 440 U.S. 367 (1979)............................... 60
Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996).... 22, 67,
                                                                  80, 91
Shaw v. Hunt, 116 S.Ct. 1894 (1996).............................. 74, 87
Shaw v. Reno, 509 U.S. 630 (1993).................................... 74
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)
                                                                      19
Sinclair v. United States, 279 U.S. 263 (1929)....................... 91
Smiley v. Citibank, 116 S. Ct. 1730 (1996)............................ 9
Soldal v. Cook County, 506 U.S. 56 (1992)............................ 47
South Dakota v. Bourland, 508 U.S. 679 (1993)........................ 11
Stansbury v. California, 114 S. Ct. 1526 (1994)...................... 54
Stone v. Powell, 428 U.S. 465 (1976)............................. 53, 54
Sullivan v. Louisiana, 508 U.S. 275 (1993)....................... 59, 71
Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967)............. 20
Torcaso v. Watkins, 367 U.S. 488 (1961).............................. 27
Tuggle v. Netherland, 116 S. Ct. 283 (1995).......................... 64
Tuilaepa v. California, 114 S. Ct. 2630 (1994)....................... 63
Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994)........ 39, 40
Turner v. Fouche, 396 U.S. 346 (1970)................................ 20
TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993)........... 69
U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18
 (1994).............................................................. 20
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)........... 2, 85
United States v. Bramblett, 348 U.S. 503 (1955)...................... 91
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)................. 48
United States v. Carlton, 114 S. Ct. 2018 (1994)..................... 55
United States v. Dixon, 509 U.S. 688 (1993)...................... 52, 91
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)....... 35-38
United States v. Gaudin, 115 S. Ct. 2310 (1995).................. 59, 91
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).................. 45
United States v. Hemme, 476 U.S. 558 (1986).......................... 55
United States v. IBM Corp., 116 S. Ct. 1793 (1996)....... 11, 12, 22, 79
United States v. Jacobsen, 466 U.S. 109 (1984)....................... 47
United States v. James Daniel Good Real Property, 510 U.S. 43
 (1993).............................................................. 70
United States v. Lopez, 514 U.S. 549 (1995)................ 4, 6, 65, 80
United States v. National Treasury Employees Union, 115 S. Ct.
 1003 (1995)..................................................... 33, 80
United States v. NTEU, 513 U.S. 454 (1995)........................... 15
United States v. One Assortment of 89 Firearms, 465 U.S. 354
 (1984).............................................................. 51
United States v. Padilla, 508 U.S. 77 (1993)......................... 50

[[Page 97]]

United States v. Ursery, 116 S. Ct. 2135 (1996)...................... 51
United States v. Virginia, 116 S. Ct. 2264 (1996)................ 73, 87
Untermyer v. Anderson, 276 U.S. 440 (1928)........................... 55
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)................ 55
Vernonia School Dist. v. Acton, 115 S. Ct. 2386 (1995)............... 49
Victor v. Nebraska, 511 U.S. 1 (1994)................................ 71
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
 Council, 425 U.S. 748 (1976).................................... 37, 38
Voinovich v. Quilter, 507 U.S. 146 (1993)............................ 74
Warth v. Seldin, 422 U.S. 490 (1975)................................. 19
Waters v. Churchill, 114 S. Ct. 1878 (1994).......................... 34
Weiss v. United States, 510 U.S. 163 (1994).......................... 15
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)......... 6, 7, 84
Whren v. United States, 116 S. Ct. 1769 (1996)....................... 48
Wilson v. Arkansas, 115 S. Ct. 1914 (1995)........................... 47
Wilton v. Seven Falls Co., 515 U.S. 277 (1995)....................... 20
Wisconsin v. City of New York, 116 S. Ct. 1091 (1996)................. 4
Wisconsin v. Mitchell, 508 U.S. 476 (1993)....................... 32, 41
Withrow v. Williams, 507 U.S. 680 (1993)......................... 53, 54
Wood v. Bartholomew, 116 S. Ct. 7 (1995)............................. 71
Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619 (1996)................. 23
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)...... 38
Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).... 27, 28


[[Page 99]]


                                  INDEX

Abortion
  protests, injunctions, First Amendment protections................. 42
Admiralty
  maritime torts..................................................... 22
Advertising
  compelled disclosure of information................................ 38
Affirmative action
  federal legislation subject to strict scrutiny..................... 72
Appointments Clause
  military judges.................................................... 14
Association, right of
  parade organizers, control of parade message....................... 32
Cable Television
  First Amendment protections........................................ 39
Campaign finance
  independent party expenditures, First Amendment.................... 34
Census
  decision not to make statistical adjustment......................... 4
Commerce Clause
  discriminatory local solid waste ``flow control'' law............... 7
  discriminatory state taxation.................................... 6, 7
  state taxation, apportionment, multinational corporation............ 9
Commerce power
  invalidity of Gun-Free School Zones Act............................. 4
Congress
  power under Commerce Clause......................................... 4
  qualifications of Members, term limits.............................. 2
Congressional districting
  racial gerrymandering, bizarrely shaped districts.................. 74
Contempt
  distinction between civil and criminal contempt.................... 18
Counsel, assistance of
  ineffective counsel, grounds for new trial......................... 60
Death penalty
  military justice, standards promulgated by President................ 1
  permissible jury instructions...................................... 63
Delegation
  military justice, President's authority as Commander-in-Chief... 1, 13
Diversity of Citizenship
  federal court cases, choice of law................................. 23
Double jeopardy
  same conduct test.................................................. 52
  sentence enhancement............................................... 52
Drug testing
  public high school athletes........................................ 49
Due Process
  retroactive taxation............................................... 55
  solitary confinement of prisoners.................................. 70
Ex Post Facto Clause
  decreasing frequency of parole-suitability hearings................ 12
Excessive fines
  civil forfeiture................................................... 63

[[Page 100]]

Exclusionary rule
  federal habeas corpus, review of Miranda claims.................... 54
False statements
  federal statute, materiality as issue for jury..................... 59
Federalism
  Gun-Free School Zones Act, invalidity.............................. 65
  principles reflected in commerce power analysis..................... 5
First Amendment
  protected expression, state authority under 21st Amendment......... 77
  state action requirement........................................... 31
Forfeiture
  innocent joint owner, car used in prostitution..................... 69
  non-punitive nature, double jeopardy analysis...................... 51
Government contractors
  free speech rights................................................. 33
Gun-Free School Zones Act
  invalid as exceeding congressional commerce power............... 4, 65
Habeas corpus
  claim of innocence, capital cases.................................. 64
  statutory limitations.............................................. 24
Homosexuals
  Colorado constitutional amendment limiting local laws concerning
                                                                      74
Honoraria ban
  government employees, free speech rights........................... 33
Impeachment
  judicial review of Senate trial, ``political question''............ 15
Import-Export Clause
  federal excise tax on insurance for exported goods................. 11
Indian Gaming Regulatory Act
  invalidity, abrogation of state immunity in federal court.......... 67
Injunctions
  public demonstrations, First Amendment limitations................. 42
Judicial review
  preclusion of review, military base closures....................... 14
  Westfall Act, Federal Tort Claims Act.............................. 15
Jury trial
  civil, when required............................................... 61
  criminal, mixed questions of law and fact.......................... 59
  when required, multiple petty offenses............................. 59
Limitations period
  retroactive change, final judgments, unconstitutionality........... 17
Military justice
  appointment of military judges..................................... 14
  death penalty, President's promulgation of standards................ 1
Miranda rule
  federal habeas corpus claim........................................ 53
  waiver of rights................................................... 54
Mootness
  appropriateness of vacatur as remedy............................... 20
Newsracks
  use on public property, ban limited to commercial materials........ 36
Parades
  organizers, right to control parade message........................ 43

[[Page 101]]

Political question
  impeachment proceedings, judicial review....................... 15, 22
Preemption
  Medical Device Amendments........................................... 9
Press, freedom of
  cable television................................................... 39
Prisons
  Prison Litigation Reform Act, restrictions on litigation........... 19
Punitive damages
  amount, due process constraints.................................... 69
Racial discrimination
  affirmative action, federal legislation, strict scrutiny........... 72
Racial gerrymandering
  ``bizarre'' shape of congressional districts....................... 74
Religion: Establishment Clause
  equal access of religious groups to school property................ 28
  public funding for sign-language interpreter in public schools
                                                                      27
  religious displays on public property.............................. 29
  special school district for religioius sect........................ 29
  test for validity.................................................. 27
Religion: Free Exercise
  animal sacrifice................................................... 31
  Religious Freedom Restoration Act.................................. 30
Retroactivity
  Supreme Court ruling, cases still on direct review................. 21
  taxation........................................................... 55
Search and seizure
  ``knock and announce'' rule........................................ 47
  definition of ``seizure''.......................................... 47
  drug testing of public high school athletes........................ 49
  frisk, ``plain touch'' seizure of contraband....................... 48
  traffic violation, pretextual stop................................. 48
Separation of powers
  changed position of Justice Department............................. 13
  delegation to President in role as Commander-in-Chief............... 2
  legislative alteration of final judgments of courts................ 17
Sex discrimination
  jury selection..................................................... 73
  military college................................................... 73
Speech, commercial
  beer labels, display of alcohol content............................ 35
  compelled disclosure in advertising................................ 38
  liquor ads, price information...................................... 37
  reasonable fit between ends and means of regulation................ 36
Speech, freedom of
  anonymous advocacy................................................. 43
  cable television................................................... 39
  hate crimes, enhancement of criminal penalty....................... 41
  in-person solicitation by CPAs..................................... 35
  independent government contractors............................. 33, 34
  parade organizers, right to control parade message................. 43
  public demonstrations, injunctions................................. 42
  public employees, honoraria ban.................................... 33

[[Page 102]]

  residential signs.................................................. 44
  signs, use of utility poles........................................ 43
Standing to sue
  suit by organization on behalf of members.......................... 19
Stare decisis
  conflicting views of Justices...................................... 22
States
  immunity in federal courts, congressional power to abrogate........ 67
Taking of property
  land dedications, permit conditions................................ 56
Taxation, Federal
  excise tax, import-export clause................................... 12
  retroactive application............................................ 55
Taxation, State
  apportionment, multinational corporation, franchise tax............. 8
  discrimination against interstate commerce....................... 6, 7
Term limits
  Members of Congress, state-imposed limitations...................... 2
Twenty-first Amendment
  authority of states, regulation of expressive behavior............. 77
  prohibition against liquor price advertising not shielded by....... 77
Vacatur
  remedy for mootness, limitations................................... 20