[Constitution of the United States of America: Analysis and Interpretation - 1998 Supplement]
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Constitution of the United States: Analysis and Interpretation, 1998 Supplement




 106th Congress                                                Document
                                 SENATE

   1st Session                                                 No. 106-8

________________________________________________________________________

 
            THE CONSTITUTION OF THE UNITED STATES OF AMERICA 
                      ANALYSIS AND INTERPRETATION

                               __________

                             1998 SUPPLEMENT

                ANALYSIS OF CASES DECIDED BY THE SUPREME

               COURT OF THE UNITED STATES TO JUNE 26, 1998

  


  

                             Prepared by the

                     Congressional Research Service

                           Library of Congress

                            Johnny H. Killian

                           George A. Costello

                            Kenneth R. Thomas

                                 Editors

                            David M. Ackerman

                               Henry Cohen

                              Robert Meltz

                              Contributors

                     U.S. GOVERNMENT PRINTING OFFICE

      58-950DP              WASHINGTON : 1999
________________________________________________________________________

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

                          Washington, DC 20402
                                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 premeditated murder and 
            felony murder for persons subject to the Act, but the 
            statute does not comport with the Court's capital punishment 
            jurisprudence, which requires the death sentence to be 
            cabined by standards so that the sentencing authority is 
            constrained to narrow the class of convicted persons to be 
            so sentenced and to justify the individual imposition of the 
            sentence. \3\ However, the President in 1984 had promulgated 
            standards that purported to supply the constitutional 
            validity the UCMJ needed. \4\
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                    \1\ 517 U.S. 748 (1996). The decision was unanimous 
            in result, but there were several concurrences reflecting 
            some differences among the Justices.
                    \2\ 10 U.S.C. Sec. Sec. 918(1), (4).
                    \3\ The Court assumed the applicability of Furman v. 
            Georgia, 408 U.S. 238 (1972), and its progeny, to the 
            military, 517 U.S. at 755-56, a point on which Justice 
            Thomas disagreed, id. at 777.
                    \4\ Rule for Courts-Martial; see 517 U.S. at 754.
---------------------------------------------------------------------------

                    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\ 517 U.S. at 771-74.
---------------------------------------------------------------------------

                    In the course of the opinion, the Court 
            distinguished between its usual separation-of-powers 
            doctrine--emphasizing arrogation of power by a branch and 
            impairment of another branch's ability to carry out its 
            functions--and the delegation doctrine, ``another branch of 
            our separation of powers jurisdiction,'' which is informed 
            not by the arrogation and impairment analyses but solely by 
            the provision of standards, \7\ thus confirming what has 
            long been evident that the delegation doctrine is unmoored 
            to separation-of-powers principles alogether.
---------------------------------------------------------------------------

                    \7\ Id. at 758-59.
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[P. 82, add to n.106:]
                Notice Clinton v. City of New York, 118 S.Ct. 2091 
            (1998), in which the Court struck down what Congress had 
            intended to be a delegation to the President, finding that 
            the authority conferred on the President was legislative 
            power, not executive power, which failed because the 
            presentment clause had not and could not have been complied 
            with. The dissenting Justices argued that the law, the Line 
            Item Veto Act, was properly treated as a delegation and was 
            clearly constitutional. Id. at 2110 (Justice Scalia 
            concurring in part and dissenting in part), 2118 (Justice 
            Breyer dissenting).
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, 
            which 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.
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                    \8\ 514 U.S. 779 (1995). The majority was composed 
            of Justice Stevens (writing the opinion of the Court) and 
            Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting 
            were Justice Thomas (writing the opinion) and Chief Justice 
            Rehnquist and Justices O'Connor and Scalia. Id. at 845.
                    \9\ Article I, Sec. 2, cl. 2, provides that a person 
            may qualify as a Representative if she is at least 25 years 
            old, has been a United States citizen for at least 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, 
            nine years' citizenship, and being an inhabitant of the 
            State at time of election.
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                    Richly embellished with disputatious arguments about 
            the text of the Constitution, the history of its drafting 
            and ratification, and the practices of Congress and the 
            States in the early years of the United States, the actual 
            determination of the Court as controverted by the dissent 
            was much more over founding principles than more ordinary 
            constitutional interpretation. \10\
---------------------------------------------------------------------------

                    \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 respecting the elections of Members of 
            Congress; the Court and the dissent reached different 
            conclusions after a minute examination of the records of the 
            Convention respecting the drafting of these clauses and the 
            ratification debates; and the Court and the dissent were far 
            apart on the meaning of the practices in the States in 
            legislating qualifications and election laws and in Congress 
            in deciding election contests based on qualifications 
            disputes.

                    A default principle relied on by both Court and 
            dissent, given the arguments drawn from text, creation, and 
            practice, had to do with the fundamental principle 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 powers that were reserved to them. The 
            States could have no reserved powers with respect to the 
            Federal Government. ``As Justice Story recognized, `the 
            states can exercise no powers whatsoever, which exclusively 
            spring out of the existence of the national government, 
            which the constitution does not delegate to them. . . . No 
            state can say, that it has reserved, what it never 
            possessed.' '' \12\ The States could not before the founding 
            have possessed powers to legislate respecting the Federal 
            Government, and since the Constitution did not delegate to 
            the States the power to prescribe qualifications for Members 
            of Congress, the States did not have it. \13\
---------------------------------------------------------------------------

                    \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.

[P. 115, add to n.317:]
                Another census controversy was resolved in Wisconsin v. 
            City of New York, 517 U.S. 1 (1996), in which the Court held 
            that the decision of the Secretary of Commerce not to 
            conduct a post-enumeration survey and statistical adjustment 
            for an undercount in the 1990 Census was reasonable and 
            within the bounds of discretion conferred by the 
            Constitution and statute.
Presentation of Resolutions
[P. 144, add new topic at end of section:]

                    The Line Item Veto.-- For more than a century, 
            United States Presidents had sought the authority to strike 
            out of appropriations bills particular items, to veto ``line 
            items'' of money bills and sometimes legislative measures as 
            well. Finally, in 1996, Congress approved and the President 
            signed the Line Item Veto Act. \14\ The law empowered the 
            President, within five days of signing a bill, to ``cancel 
            in whole'' spending items and targeted, defined tax 
            benefits. In acting on this authority, the President was to 
            determine that the cancellation of each item would ``(i) 
            reduce the Federal budget deficit; (ii) not impair any 
            essential Government functions; and (iii) not harm the 
            national interest.'' \15\ In Clinton v. City of New York, 
            \16\ the Court held the Act to be unconstitutional because 
            it did not comply with the presentment clause.
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                    \14\ Pub. L. 104-130, 110 Stat. 1200, codified in 
            part at 2 U.S.C. Sec. Sec. 691-92.
                    \15\ Id. at Sec. 691(a)(A).
                    \16\ 118 S.Ct. 2091 (1998).
---------------------------------------------------------------------------

                    Although Congress in passing the Act considered 
            itself to have been delegating power, \17\ and although the 
            dissenting Justices would have upheld the Act as a valid 
            delegation, \18\ the Court instead analyzed the statute 
            under the presentment clause. In the Court's view, the two 
            bills from which the President subsequently struck items 
            became law the moment the President signed them. His 
            cancellations thus amended and in part repealed the two 
            federal laws. Under its most immediate precedent, the Court 
            continued, statutory repeals must conform to the presentment 
            clauses's ``single, finely wrought and exhaustively 
            considered, procedure'' for enacting or repealing a law. 
            \19\ In no respect did the procedures in the Act comply with 
            that clause, and in no way could they. The President was 
            acting in a legislative capacity, altering a law in the 
            manner prescribed, and legislation must, in the way Congress 
            acted, be bicameral and be presented to the President after 
            Congress acted. Nothing in the Constitution authorized the 
            President to amend or repeal a statute unilaterally, and the 
            Court could construe both constitutional silence and the 
            historical practice over 200 years as ``an express 
            prohibition'' of the President's action. \20\
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                    \17\ E.g., H.R. Conf. Rep. No. 104-491, 104th Cong., 
            2d Sess., 15 (1996) (stating that the proposed law 
            ``delegates limited authority to the President'').
                    \18\ Id. at 118 S.Ct., 2110 (Justice Scalia 
            concurring in part and dissenting in part); id. at 2118 
            (Justice Breyer dissenting).
                    \19\ Id. at 2103-04 (citing and quoting INS v. 
            Chadha, 462 U.S. 919, 951 (1983).
                    \20\ Id. at 2103-04.
---------------------------------------------------------------------------
Commerce Clause
[P. 167, add to n.619, immediately after New York v. United 
    States:]
                See also Printz v. United States, 521 U.S. 898 (1997).
[P. 207, add to text following n.820:]

                    For the first time in almost sixty years, \21\ the 
            Court invalidated a federal law as exceeding Congress' 
            authority under the commerce clause. \22\ The statute was a 
            provision making it a federal offense to possess a firearm 
            within 1,000 feet of a school. \23\ The Court reviewed the 
            doctrinal development of the commerce clause, especially the 
            effects and aggregation tests, and reaffirmed that it is the 
            Court's responsibility to decide whether a rational basis 
            exists for concluding that a regulated activity sufficiently 
            affects interstate commerce when a law is challenged. \24\ 
            The Court identified three broad categories of activity that 
            Congress may regulate under its commerce power. ``First, 
            Congress may regulate the use of the channels of interstate 
            commerce. . . . Second, Congress is empowered to regulate 
            and protect the instrumentalities of interstate commerce, or 
            persons or things in interstate commerce, 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.'' \25\
---------------------------------------------------------------------------

                    \21\ The last such decision had been Carter v. 
            Carter Coal Co., 298 U.S. 238 (1936).
                    \22\ United States v. Lopez, 514 U.S. 549 (1995). 
            The Court was divided 5-to-4, with Chief Justice Rehnquist 
            writing the opinion of the Court, joined by Justices 
            O'Connor, Scalia, Kennedy, and Thomas, with dissents by 
            Justices Stevens, Souter, Breyer, and Ginsburg.
                    \23\ 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.
                    \24\ 514 U.S. at 556-57, 559.
                    \25\ Id. at 558-59.
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                    Clearly, said the Court, the criminalized activity 
            did not implicate the first two categories. \26\ As for the 
            third, the Court found an insufficient connection. First, a 
            wide variety of regulations of ``intrastate economic 
            activity'' has been sustained where an activity 
            substantially affects interstate commerce. But the statute 
            being challenged, the Court continued, was a criminal law 
            that had nothing to do with ``commerce'' or with ``any sort 
            of economic enterprise.'' Therefore, it could not be 
            sustained under precedents ``upholding regulations of 
            activities that arise out of or are connected with a 
            commercial transaction, which viewed in the aggregate, 
            substantially affects interstate commerce.'' \27\ 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.'' \28\ 
            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. \29\ 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.'' \30\
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                    \26\ Id. at 559.
                    \27\ Id. at 559-61.
                    \28\ Id. at 561.
                    \29\ Id. at 563-68.
                    \30\ Id. at 564.
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                    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, \31\ 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. \32\ 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 States lay 
            claim by right of history and expertise,'' he would have the 
            Court intervene. \33\
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                    \31\ ``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).
                    \32\ Id. at 584-602 (Justice Thomas concurring).
                    \33\ Id. at 568-83 (Justice Kennedy concurring).
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                    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, \34\ the Court will exert a restraining 
            hand to legislation such as that federalizing much state 
            criminal law enforcement.
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                    \34\ For a striking example, in the same Term as 
            Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 
            265 (1995).
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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). Justice Thomas has written an extensive opinion 
            rejecting both the historical and jurisprudential basis of 
            the dormant commerce clause and expressing a preference for 
            reliance on the imports-exports clause. Camps Newfound/
            Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609 (1997) 
            (dissenting; joined by Justice Scalia entirely and by Chief 
            Justice Rehnquist as to the commerce clause but not the 
            imports-exports clause).
[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 not 
            apportioned to reflect the intrastate travel and the 
            interstate travel. \35\ 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 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. \36\
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                    \35\ 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.
                    \36\ 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. \37\
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                    \37\ Fulton Corp. v. Faulkner, 516 U.S. 325 (1996). 
            The State had defended on the basis that the tax was a 
            ``compensatory'' one designed to make interstate commerce 
            bear a burden already borne by intrastate commerce. The 
            Court recognized the legitimacy of the defense, but it found 
            the tax to meet none of the three criteria for 
            classification as a valid compensatory tax. Id. at 333-44.
---------------------------------------------------------------------------
[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. 233, add to n.965:]
                Compare Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) 
            (state intangibles tax on a fraction of the value of 
            corporate stock owned by in-state residents inversely 
            proportional to the corporation's exposure to the state 
            income tax violated dormant commerce clause), with General 
            Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state imposition 
            of sales and use tax on all sales of natural gas except 
            sales by regulated public utilities, all of which were in-
            state companies, but covering all other sellers that were 
            out-of-state companies did not violate dormant commerce 
            clause because regulated and unregulated companies were not 
            similarly situated).
[P. 233, add to text following n.965:]

                    Expanding, although neither unexpectedly nor 
            exceptionally, its dormant commerce jurisprudence, the Court 
            in Camps Newfound/Owatonna, Inc. v. Town of Harrison, \38\ 
            applied its nondiscrimination element of the doctrine to 
            invalidate the State's charitable property tax exemption 
            statute, which applied to nonprofit firms performing 
            benevolent and charitable functions, but which excluded 
            entities serving primarily non-state residents. The claimant 
            here operated a church camp for children, most of whom 
            resided out-of-state. The discriminatory tax would easily 
            have fallen had it been applied to profit-making firms, and 
            the Court saw no reason to make an exception for nonprofits. 
            The tax scheme was designed to encourage entities to care 
            for local populations and to discourage attention to out-of-
            state individuals and groups. ``For purposes of Commerce 
            Clause analysis, any categorical distinction between the 
            activities of profit-making enterprises and not-for-profit 
            entities is therefore wholly illusory. Entities in both 
            categories are major participants in interstate markets. 
            And, although the summer camp involved in this case may have 
            a relatively insignificant impact on the commerce of the 
            entire Nation, the interstate commercial activities of 
            nonprofit entities as a class are unquestionably 
            significant.'' \39\
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                    \38\ 520 U.S. 564 (1997). The decision was a 5-to-4 
            one with a strong dissent by Justice Scalia, id. at 595, and 
            a philosophically departure by Justice Thomas. Id. at 609.
                    \39\ Id. at 586.
---------------------------------------------------------------------------
[P. 236, add to n.978:]
                In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 
            (1994), the Court held invalidly discriminatory against 
            interstate commerce a state milk pricing order, which 
            imposed an assessment on all milk sold by dealers to in-
            state retailers, the entire assessment being distributed to 
            in-state dairy farmers despite the fact that about two-
            thirds of the assessed milk was produced out of State. The 
            avowed purpose and undisputed effect of the provision was to 
            enable higher-cost in-state dairy farmers to compete with 
            lower-cost dairy farmers in other States.
[P. 236, add to text following n.980:]

                    Further extending the limitation of the clause on 
            waste disposal, \40\ 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. \41\ The town's reason for the 
            restriction was its decision to have built a solid waste 
            transfer station by a private contractor, rather than with 
            public funds by the town. To make the arrangement appetizing 
            to the contractor, the town guaranteed it a minimum waste 
            flow, for which it could charge a fee significantly higher 
            than market rates. The guarantee was policed by the 
            requirement that all solid waste generated within the town 
            be processed at the contractor's station and that any person 
            disposing of solid waste in any other location would be 
            penalized.
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                    \40\  See also Oregon Waste Systems, Inc. v. 
            Department of Envtl. Quality, 511 U.S. 93 (1994) 
            (discriminatory tax).
                    \41\ 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. \42\
---------------------------------------------------------------------------

                    \42\ 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, \43\ upheld the 
            State's worldwide-combined reporting method of determining 
            the corporate franchise tax owed by unitary multinational 
            corporations, as applied to a foreign corporation. The Court 
            determined that the tax easily satisfied three of the four-
            part Complete Auto test--nexus, apportionment, and relation 
            to State's services--and concluded that the 
            nondiscrimination principle--perhaps violated by the letter 
            of the law--could be met by the discretion accorded state 
            officials. As for the two additional factors, as outlined in 
            Japan Lines, the Court pronounced itself satisfied. Multiple 
            taxation was not the inevitable result of the tax, and that 
            risk would not be avoided by the use of any reasonable 
            alternative. The tax, it was found, did not impair federal 
            uniformity nor prevent the Federal Government from speaking 
            with one voice in international trade. The result of the 
            case, perhaps intended, is that foreign corporations have 
            less protection under the negative commerce clause. \44\
---------------------------------------------------------------------------

                    \43\ 512 U.S. 298 (1994).
                    \44\  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, 517 U.S. 735 (1996).
[P. 247, add to n.1027:]
                And see Department of Treasury v. Fabe, 508 U.S. 491 
            (1993).
[P. 247, add to n.1029:]
                See also American Airlines v. Wolens, 513 U.S. 219 
            (1995).
[P. 248, add to n.1032:]
                District of Columbia v. Greater Washington Bd. of Trade, 
            506 U.S. 125 (1992) (law requiring employers to provide 
            health insurance coverage, equivalent to existing coverage, 
            for workers receiving workers' compensation benefits); John 
            Hancock Mutual Life Ins. Co. v. Harris Trust and Savings 
            Bank, 510 U.S. 86 (1993) (ERISA's fiduciary standards, not 
            conflicting state insurance laws, apply to insurance 
            company's handling of general account assets derived from 
            participating group annuity contract); New York State Conf. 
            of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 
            U.S. 645 (1995) (no preemption of statute that required 
            hospitals to collect surcharges from patients covered by a 
            commercial insurer but not from patients covered by Blue 
            Cross/Blue Shield plan); De Buono v. NYSA-ILA Medical and 
            Clinical Services Fund, 520 U.S. 806 (1997); California Div. 
            of Labor Standards Enforcement v. Dillingham Construction, 
            Inc., 519 U.S. 316 (1997); Boggs v. Boggs, 520 U.S. 833 
            (1997) (decided not on the basis of the express preemption 
            language but instead by implied preemption analysis).
[P. 249, add to text following n.1035:]

                    Little clarification of the confusing Cipollone 
            decision and opinions resulted in the cases following, 
            although it does seem evident that the attempted distinction 
            limiting courts to the particular language of preemption 
            when Congress has spoken has not prevailed. At issue in 
            Medtronic, Inc. v. Lohr, \45\ was the Medical Device 
            Amendments (MDA) of 1976, which prohibited States from 
            adopting or continuing in effect ``with respect to a 
            [medical] device'' any ``requirement'' that is ``different 
            from, or in addition to'' the applicable federal requirement 
            and that relates to the safety or effectiveness of the 
            device. \46\ The issue, then, was whether a common-law tort 
            obligation imposed a ``requirement'' that was different from 
            or in addition to any federal requirement. The device, a 
            pacemaker lead, had come on the market not pursuant to the 
            rigorous FDA test but rather as determined by the FDA to be 
            ``substantially equivalent'' to a device previously on the 
            market, a situation of some import to at least some of the 
            Justices.
---------------------------------------------------------------------------

                    \45\ 518 U.S. 470 (1996). See also CSX 
            Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993) 
            (under Federal Railroad Safety Act, a state common-law claim 
            alleging negligence for operating a train at excessive speed 
            is preempted, but a second claim alleging negligence for 
            failure to maintain adequate warning devices at a grade 
            crossing is not preempted).
                    \46\ 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. 
            \47\
---------------------------------------------------------------------------

                    \47\ The dissent, by Justice O'Connor and three 
            others, would have held preempted the latter claims, 518 
            U.S. at 509, whereas Justice Breyer thought that common-law 
            claims would sometimes be preempted, but not here. Id. at 
            503 (concurring).
---------------------------------------------------------------------------

                    Following Cipollone, the Court observed that while 
            it ``need not go beyond'' the statutory preemption language, 
            it did need to ``identify the domain expressly pre-empted'' 
            by the language, so that ``our interpretation of that 
            language does not occur in a contextual vacuum.'' That is, 
            it must be informed by two presumptions about the nature of 
            preemption: the presumption that Congress does not 
            cavalierly preempt common-law causes of action and the 
            principle that it is Congress' purpose that is the ultimate 
            touchstone. \48\
---------------------------------------------------------------------------

                    \48\ Id. at 484-85. See also id. at 508 (Justice 
            Breyer concurring); Freightliner Corp. v. Myrick, 514 U.S. 
            280, 288-89 (1995); Barnett Bank v. Nelson, 517 U.S. 25, 31 
            (1996); California Div. of Labor Standards Enforcement v. 
            Dillingham Construction, Inc., 519 U.S. 316, 334 (1997) 
            (Justice Scalia concurring); Boggs v. Boggs, 520 U.S. 833 
            (1997) (using ``stands as an obstacle'' preemption analysis 
            in an ERISA case, having express preemptive language, but 
            declining to decide when implied preemption may be used 
            despite express language), and id. at 854 (Justice Breyer 
            dissenting) (analyzing the preemption issue under both 
            express and implied standards).
---------------------------------------------------------------------------
[P. 252, add to n.1050 before Free v. Brand:]
                Allied-Bruce Terminix Cos., v. Dobson, 513 U.S. 265 
            (1995) (federal arbitration law preempts state law 
            invalidating pre-dispute arbitration agreements that were 
            not entered into in contemplation of substantial interstate 
            activity); Doctor's Associates, Inc. v. Casarotto, 517 U.S. 
            681 (1996) (federal arbitration law preempts state statute 
            that conditioned enforceability of arbitration clause on 
            compliance with special notice requirement).
[P. 252, add to n.1054:]
                See also Barnett Bank v. Nelson, 517 U.S. 25 (1996) 
            (federal law empowering national banks in small towns to 
            sell insurance preempts state law prohibiting banks from 
            dealing in insurance; despite explicit preemption provision, 
            state law stands as an obstacle to accomplishment of federal 
            purpose).
[P. 253, add to text following n.1057:]

                    In Boggs v. Boggs, \49\ the Court, 5-to-4, applied 
            the ``stands as an obstacle'' test for conflict even though 
            the statute (ERISA) contains an express preemption section. 
            The dispute arose in a community-property State, in which 
            heirs of a deceased wife claimed property that involved 
            pension-benefit assets that was left to them by testamentary 
            disposition, as against a surviving second wife. Two ERISA 
            provisions operated to prevent the descent of the property 
            to the heirs, but under community-property rules the 
            property could have been left to the heirs by their deceased 
            mother. The Court did not pause to analyze whether the ERISA 
            preemption provision operated to preclude the descent of the 
            property, either because state law ``relate[d] to'' a 
            covered pension plan or because state law had an 
            impermissible ``connection with'' a plan, but it instead 
            decided that the operation of the state law insofar as it 
            conflicted with the purposes Congress had intended to 
            achieve by ERISA and insofar as it ran into the two noted 
            provisions of ERISA stood as an obstacle to the effectuation 
            of the ERISA law. ``We can begin, and in this case end, the 
            analysis by simply asking if state law conflicts with the 
            provisions of ERISA or operates to frustrate its objects. We 
            hold that there is a conflict, which suffices to resolve the 
            case. We need not inquire whether the statutory phrase 
            `relate to' provides further and additional support for the 
            pre-emption claim. Nor need we consider the applicability of 
            field pre-emption.'' \50\
---------------------------------------------------------------------------

                    \49\ 520 U.S. 833 (1997).
                    \50\ Id. at 841. The dissent, id. at 854 (Justice 
            Breyer), agreed that conflict analysis was appropriate, but 
            he did not find that the state law achieved any result that 
            ERISA required.
---------------------------------------------------------------------------
[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, 515 U.S. 
            450 (1995).
[P. 263, add to n.1117, immediately following Brendale 
    discussion:]
                And see Hagen v. Utah, 510 U.S. 399 (1994).
[P. 264, add to n.1119:]
                See South Dakota v. Bourland, 508 U.S. 679 (1993) 
            (abrogation of Indian treaty rights and reduction of 
            sovereignty).
Aliens
[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., 517 U.S. 348 
            (1996), the Court held that the interpretation of terms in a 
            patent claim is a matter of law reserved entirely for the 
            court. The Seventh Amendment does not require that such 
            issues be tried to a jury.
[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, 517 U.S. 748 (1996) (in 
            context of the death penalty under the UCMJ).
Taxes on Exports
[P. 356, add to text following n.1772:]

                    Continuing its refusal to modify its export clause 
            jurisprudence, \51\ the Court held unconstitutional the 
            Harbor Maintenance Tax (HMT) under the export clause insofar 
            as the tax was applied to goods loaded at United States 
            ports for export. The HMT required shippers to pay a uniform 
            charge on commercial cargo shipped through the Nation's 
            ports. The clause, said the Court, ``categorically bars 
            Congress from imposing any tax on exports.'' \52\ However, 
            the clause does not interdict a ``user fee,'' that is a 
            charge that lacks the attributes of a generally applicable 
            tax or duty and is designed to compensate for government 
            supplied services, facilities, or benefits, and it was that 
            defense to which the Government repaired once it failed to 
            obtain a modification of the rules under the clause. But the 
            HMT bore the indicia of a tax. It was titled as a tax, 
            described as a tax in the law, and codified in the Internal 
            Revenue Code. Aside from naming, however, courts must look 
            to how things operate, and the HMT did not qualify as a user 
            fee. It did not represent compensation for services 
            rendered. The value of export cargo did not correspond 
            reliably with the federal harbor services used or usable by 
            the exporter. Instead, the extent and manner of port use 
            depended on such factors as size and tonnage of a vessel and 
            the length of time it spent in port. \53\ The HMT was thus a 
            tax, and therefore invalid.
---------------------------------------------------------------------------

                    \51\ See United States v. IBM, 517 U.S. 843, 850-61 
            (1996).
                    \52\ United States v. United States Shoe Corp., 523 
            U.S. 360, 363 (1998).
                    \53\ Id. at 367-69.
---------------------------------------------------------------------------
[P. 356, add to text following n.1775:]

                    In United States v. IBM Corp., \54\ 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 \55\ and 
            with dormant-commerce-clause doctrine. In that view, the 
            Court should distinguish between discriminatory and 
            nondiscriminatory taxes on exports. But the Court held that 
            sufficient differences existed between the export clause and 
            the other two clauses, so that its bar should continue to 
            apply to any and all taxes on goods in the course of 
            exportation.
---------------------------------------------------------------------------

                    \54\ 517 U.S. 843 (1996).
                    \55\ Article I, Sec. 10, cl. 2, applying to the 
            States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
                In United States v. IBM Corp., 517 U.S. 843 (1996), the 
            Court adhered to Thames & Mersey, and held unconstitutional 
            a federal excise tax upon insurance policies issued by 
            foreign countries as applied to coverage for exported 
            products. The Court admitted that one could question the 
            earlier case's equating of a tax on the insurance of 
            exported goods with a tax on the goods themselves, but it 
            observed that the Government had chosen not to present that 
            argument. Principles of stare decisis thus cautioned 
            observance of the earlier case. Id. at 854-5. The dissenters 
            argued that the issue had been presented and should be 
            decided by overruling the earlier case. Id. at 863 (Justices 
            Kennedy and Ginsburg dissenting).
Ex Post Facto Laws
[P. 362, add to n.1815:]
                In Eastern Enterprises v. Apfel, 118 S.Ct. 2131, 2154 
            (1998) (concurring), Justice Thomas indicated a willingness 
            to reconsider Calder to determine whether the clause should 
            apply to civil legislation.
[P. 364, add to n.1829:]
                But see California Dep't of Corrections v. Morales, 514 
            U.S. 499 (1995) (a law amending parole procedures to 
            decrease frequency of parole-suitability hearings is not ex 
            post facto as applied to prisoners who committed offenses 
            before enactment). The opinion modifies previous opinions 
            that had invalidated some laws because they operated to the 
            ``disadvantage'' of covered offenders. Henceforth, ``the 
            focus of ex post facto inquiry is . . . whether any such 
            change alters the definition of criminal conduct or 
            increases the penalty by which a crime is punishable.'' Id. 
            at 506 n.3.
Imposts or Duties on Imports or Exports
[P. 399, add to n.2000:]
                Justice Thomas has called recently for reconsideration 
            of Woodruff and the possible application of the clause to 
            interstate imports and exports. Camps Newfound/Owatonna, 
            Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997) 
            (dissenting).
[P. 400, add to n.2020:]
                See also Itel Containers Int'l Corp. v. Huddleston, 507 
            U.S. 60, 76-8 (1993). And see id. at 81-2 (Justice Scalia 
            concurring).
                               ARTICLE II

Executive Power
[P. 420, add to n.34:]
                In Loving v. United States, 517 U.S. 748 (1996), the 
            Court recurred to the original setting of Curtiss-Wright, a 
            delegation to the President without standards. Congress, the 
            Court found, had delegated to the President authority to 
            structure the death penalty provisions of military law so as 
            to bring the procedures, relating to aggravating and 
            mitigating factors, into line with constitutional 
            requirements, but Congress had provided no standards to 
            guide the presidential exercise of the authority. Standards 
            were not required, held the Court, because the President's 
            role as Commander-in-Chief gave him responsibility to 
            superintend the military establishment and Congress and the 
            President had interlinked authorities with respect to the 
            military. Where the entity exercising the delegated 
            authority itself possesses independent authority over the 
            subject matter, the familiar limitations on delegation do 
            not apply. Id. at 771-74.
Separation of Powers
[P. 422, add to text following n.45:]

                    Significant change in the position of the Executive 
            Branch on separation of powers may be discerned in two 
            briefs of the Department of Justice's Office of Legal 
            Counsel, which may spell some measure of judicial 
            modification of the formalist doctrine of separation and 
            adoption of the functionalist approach to the doctrine. \1\ 
            The two opinions withdraw from the Department's earlier 
            contention, following Buckley v. Valeo, that the execution 
            of the laws is an executive function that may be carried out 
            only by persons appointed pursuant to the appointments 
            clause, thus precluding delegations to state and local 
            officers and to private parties (as in qui tam actions), as 
            well as to glosses on the take care clause and other 
            provisions of the Constitution. Whether these memoranda 
            signal long-term change depends on several factors, 
            importantly on whether they are adhered to by subsequent 
            administrations.
---------------------------------------------------------------------------

                    \1\ Memorandum for John Schmidt, Associate Attorney 
            General, from Assistant Attorney General Walter Dellinger, 
            Constitutional Limitations on Federal Government 
            Participation in Binding Arbitration (Sept. 7, 1995); 
            Memorandum for the General Counsels of the Federal 
            Government, from Assistant Attorney General Walter 
            Dellinger, The Constitutional Separation of Powers Between 
            the President and Congress (May 7, 1996). The principles 
            laid down in the memoranda depart significantly from 
            previous positions of the Department of Justice. For 
            conflicting versions of the two approaches, see 
            Constitutional Implications of the Chemical Weapons 
            Convention, Hearings Before the Senate Judiciary 
            Subcommittee on the Constitution, Federalism, and Property 
            Rights, 104th Cong., 2d Sess. (1996), 11-26, 107-10 
            (Professor John C. Woo), 80-106 (Deputy Assistant Attorney 
            General Richard L. Shiffrin).
---------------------------------------------------------------------------
[P. 425, add to text following n.61:]

                    In the course of deciding that the President's 
            action in approving the closure of a military base, pursuant 
            to statutory authority, was not subject to judicial review, 
            the Court enunciated a principle that may mean a great deal, 
            constitutionally speaking, or that may not mean much of 
            anything. \2\ The lower court had held that, while review of 
            presidential decisions on statutory grounds might be 
            precluded, his decisions were reviewable for 
            constitutionality; in that court's view, whenever the 
            President acts in excess of his statutory authority, he also 
            violates the constitutional separation-of-powers doctrine. 
            The Supreme Court found this analysis flawed. ``Our cases do 
            not support the proposition that every action by the 
            President, or by another executive official, in excess of 
            his statutory authority is ipso facto in violation of the 
            Constitution. On the contrary, we have often distinguished 
            between claims of constitutional violations and claims that 
            an official has acted in excess of his statutory 
            authority.'' \3\ Thus, the Court drew a distinction between 
            executive action undertaken without even the purported 
            warrant of statutory authorization and executive action in 
            excess of statutory authority. The former may violate 
            separation of powers, while the latter will not. \4\
---------------------------------------------------------------------------

                    \2\ Dalton v. Specter, 511 U.S. 462 (1994).
                    \3\ Id. at 472.
                    \4\ See The Supreme Court, Leading Cases, 1993 Term, 
            108 Harv. L. Rev. 139, 300-10 (1994).
---------------------------------------------------------------------------

                    Doctrinally, the distinction is important and 
            subject to unfortunate application. \5\ Whether the brief, 
            unilluminating discussion in Dalton will bear fruit in 
            constitutional jurisprudence, however, is problematic.
---------------------------------------------------------------------------

                    \5\ ``As a matter of constitutional logic, the 
            executive branch must have some warrant, either statutory or 
            constitutional, for its actions. The source of all federal 
            governmental authority is the Constitution and, because the 
            Constitution contemplates that Congress may delegate a 
            measure of its power to officials in the executive branch, 
            statutes. The principle of separation of powers is a direct 
            consequence of this scheme. Absent statutory authorization, 
            it is unlawful for the President to exercise the powers of 
            the other branches because the Constitution does not vest 
            those powers in the President. The absence of statutory 
            authorization is not merely a statutory defect; it is a 
            constitutional defect as well.'' Id. at 305-06 (footnote 
            citations omitted).
---------------------------------------------------------------------------
Appointment of Officers
[P. 514, add to text following n.468:]

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

                    \6\ 520 U.S. 651 (1997).
                    \7\ Id. at 661-62.
                    \8\ Id. at 662-63. The case concerned whether the 
            Secretary of Transportation, a presidential appointee with 
            the advice and consent of the Senate, could appoint judges 
            of the Coast Guard Court of Military Appeals; necessarily, 
            the judges had to be ``inferior'' officers. In related 
            cases, the Court held that designation or appointment of 
            military judges, who are ``officers of the United States,'' 
            does not violate the appointments clause. The judges are 
            selected by the Judge Advocate General of their respective 
            branch of the Armed Forces. These military judges, however, 
            were already commissioned officers who had been appointed by 
            the President with the advice and consent of the Senate, so 
            that their designation simply and permissibly was an 
            assignment to them of additional duties that did not need a 
            second formal appointment. Weiss v. United States, 510 U.S. 
            163 (1994). However, the appointment of civilian judges to 
            the Coast Guard Court of Military Review by the same method 
            was impermissible; they had either to be appointed by an 
            officer who could exercise appointment-clause authority or 
            by the President, and their actions were not salvageable 
            under the de facto officer doctrine. Ryder v. United States, 
            515 U.S. 177 (1995).
---------------------------------------------------------------------------
[P. 516, add new note to end of first sentence of first full 
    paragraph:]
                As the text suggested, Freytag seemed to be a tentative 
            decision, and Edmond v. United States, 520 U.S. 651 (1997), 
            a unanimous decision written by Justice Scalia, whose 
            concurring opinion in Freytag challenged the Court's 
            analysis, may easily be read as retreating considerably from 
            it.
[P. 519, add to n.498:]
                The Supreme Court held this provision unconstitutional 
            in United States v. NTEU, 513 U.S. 454 (1995).
Presidential Immunity From Judicial Direction
[P. 579, add to n.723:]
                See also, following Franklin, Dalton v. Specter, 511 
            U.S. 462 (1994).
[P. 582, add to text following n.738:]

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

                    \9\ 520 U.S. 681 (1997).
                    \10\ The Court observed at one point that it doubted 
            that defending the suit would much preoccupy the President, 
            that his time and energy would not be much taken up by it. 
            ``If the past is any indicator, it seems unlikely that a 
            deluge of such litigation will ever engulf the Presidency.'' 
            Id. at 702.
---------------------------------------------------------------------------
[P. 582, add to n.743:]
                Following the Westfall decision, Congress enacted the 
            Federal Employees Liability Reform and Tort Compensation Act 
            of 1988 (the Westfall Act), which authorized the Attorney 
            General to certify that an employee was acting within the 
            scope of his office or employment at the time of the 
            incident out of which a suit arose; upon certification, the 
            employee is dismissed from the action, and the United States 
            is substituted, the Federal Tort Claims Act (FTCA) then 
            governing the action, which means that sometimes the action 
            must be dismissed against the Government because the FTCA 
            has not waived sovereign immunity. Cognizant of the 
            temptation set before the Government to immunize both itself 
            and its employee, the Court in Gutierrez de Martinez v. 
            Lamagno, 515 U.S. 417 (1995), held that the Attorney 
            General's certification is subject to judicial review.
Impeachment
[P. 591, add to text following n.784:]

                    Upon at last reaching the question, the Court has 
            held that a claim to judicial review of an issue arising in 
            an impeachment trial in the Senate presents a nonjusticiable 
            question, a ``political question.'' \11\ Specifically, the 
            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.
---------------------------------------------------------------------------

                    \11\ Nixon v. United States, 506 U.S. 224 (1993). 
            Nixon at the time of his conviction and removal from office 
            was a federal district judge in Mississippi.
                               ARTICLE III

Judicial Power
[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).
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 remains, however, as in the 
            distinction between remedial sanctions, which are civil, and 
            punitive, which are criminal, and between in-court and out-
            of-court contempts.
---------------------------------------------------------------------------

                    \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\ 518 U.S. 651 (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.
---------------------------------------------------------------------------
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. Most of the appellate courts 
            to have passed on the constitutionality of PLRA have upheld 
            it, although not without reservations and limiting 
            constructions. E.g., Plyler v. Moore, 100 F.3d 365 (4th Cir. 
            1996), cert. denied, 522 U.S.1039 (1997); Hadix v. Johnson, 
            133 F.3d 940 (6th Cir.), cert. denied, 118 S.Ct. 2368 
            (1998); Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) 
            (en banc). Only the Ninth Circuit has struck parts of the 
            Act down. Taylor v. United States, 143 F.3d 1178 (9th Cir.), 
            reh. en banc granted, 158 F.3d 1059 (9th Cir. 1998).
---------------------------------------------------------------------------
Standing
[P. 657, add to n.335:]
                Richardson in its generalized grievance constriction 
            does not apply when Congress confers standing on litigants. 
            FEC v. Akins, 524 U.S. 11 (1998). When Congress confers 
            standing on ``any person aggrieved'' by the denial of 
            information required to be furnished them, it matters not 
            that most people will be entitled and will thus suffer a 
            ``generalized grievance,'' the statutory entitlement is 
            sufficient. Id. at 21-25.
[P. 657, add to n.336:]
                The Court's present position on Flast is set out 
            severely in Lewis v. Casey, 518 U.S. 343, 353 n. 3 (1996), 
            in which the Court largely plays down the ``serious and 
            adversarial treatment'' prong of standing and strongly 
            reasserts the separation-of-powers value of keeping courts 
            within traditional bounds. The footnote is a response to 
            Justice Souter's separate opinion utilizing Flast, id., 398-
            99, for a distinctive point.
[P. 659, add to text following n.347:]

                    In FEC v. Akins, \8\ the Court found ``injury-in-
            fact'' present when plaintiff voters alleged that the 
            Federal Election Commission had denied them information, to 
            which they alleged an entitlement, respecting an 
            organization that might or might not be a political action 
            committee. Congress had afforded persons access to the 
            Commission and had authorized ``any person aggrieved'' by 
            the actions of the FEC to sue to challenge the action. That 
            the injury was widely shared did not make the claimed injury 
            a ``generalized grievance,'' the Court held, but rather in 
            this case, as in others, it was a concrete harm to each 
            member of the class. The case is a principal example of the 
            ability of Congress to confer standing and to remove 
            prudential constraints on judicial review.
---------------------------------------------------------------------------

                    \8\ 524 U.S. 11 (1998).
---------------------------------------------------------------------------
[P. 660, add to n.352:]
                In Steel Co. v. Citizens for a Better Environment, 523 
            U.S. 83 (1998), the Court denied standing because of the 
            absence of redressability. An environmental group sued the 
            company for failing to file timely reports required by 
            statute; by the time the complaint was filed, the company 
            was in full compliance. Acknowledging that the entity had 
            suffered injury in fact, the Court found that no judicial 
            action would afford it a remedy.
[P. 661, add to text following n.360:]

                    In a case permitting a plaintiff contractors' 
            association to challenge an affirmative-action, set-aside 
            program, the Court seemed to depart from several restrictive 
            standing decisions in which it had held that the claims of 
            attempted litigants were too ``speculative'' or too 
            ``contingent.'' \9\ The association had sued, alleging that 
            many of its members ``regularly bid on and perform 
            construction work'' for the city and that they would have 
            bid on the set-aside contracts but for the restrictions. The 
            Court found the association had standing, because certain 
            prior cases under the equal protection clause established a 
            relevant proposition. ``When the government erects a barrier 
            that makes it more difficult for members of one group to 
            obtain a benefit than it is for members of another group, a 
            member of the former group seeking to challenge the barrier 
            need not allege that he would have obtained the benefit but 
            for the barrier in order to establish standing. The `injury 
            in fact' in an equal protection case of this variety is the 
            denial of equal treatment resulting from the imposition of 
            the barrier, not the ultimate inability to obtain the 
            benefit.'' \10\ The association, therefore, established 
            standing by alleging that its members were able and ready to 
            bid on contracts but that a discriminatory policy prevented 
            them from doing so on an equal basis. \11\
---------------------------------------------------------------------------

                    \9\ Northeastern Fla. Ch., Assoc. Gen. Contractors 
            v. City of Jacksonville, 508 U.S. 656 (1993). Thus, it 
            appears that had the Court applied its standard in the 
            current case, the results would have been different in such 
            cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973); 
            Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern 
            Kentucky Welfare Rights Org., 426 U.S. 26 (1976); and Allen 
            v. Wright, 468 U.S. 737 (1984).
                    \10\ 508 U.S. at 666. The Court derived the 
            proposition from another set of cases. Turner v. Fouche, 396 
            U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 (1982); 
            Regents of the Univ. of California v. Bakke, 438 U.S. 265, 
            281 n.14 (1978).
                    \11\ 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.
---------------------------------------------------------------------------
[Pp. 661-62, add to n.360:]
                Justice Scalia, who wrote the opinion in Lujan, 
            reiterated the separation-of-powers objection to 
            congressional conferral of standing in FEC v. Akins, 524 
            U.S. 11, 29, 36 (1998) (alleged infringement of President's 
            ``take care'' obligation), but this time in dissent; the 
            Court did not advert to this objection in finding that 
            Congress had provided for standing based on denial of 
            information to which the plaintiffs, as voters, were 
            entitled.
[P. 662, add to n.362:]
                See also Bennett v. Spear, 520 U.S. 154 (1997).
[P. 663, add to n.370:]
                The Court has expanded the rights of non-minority 
            defendants to challenge the exclusion of minorities from 
            petit and grand juries, both on the basis of the injury-in-
            fact to defendants and because the standards for being able 
            to assert the rights of third parties were met. Powers v. 
            Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 
            392 (1998).
[P. 668, add new paragraph at end of section:]

                    Member or legislator standing has been severely 
            curtailed, although not quite abolished, in Raines v. Byrd. 
            \12\ Several Members of Congress, who had voted against 
            passage of the Line Item Veto Act, sued in their official 
            capacities as Members of Congress to invalidate the law, 
            alleging standing based on the theory that the statute 
            adversely affected their constitutionally prescribed 
            lawmaking power. \13\ Emphasizing its use of standing 
            doctrine to maintain separation-of-powers principles, the 
            Court adhered to its holdings that, in order to possess the 
            requisite standing, a person must establish that he has a 
            ``personal stake'' in the dispute and that the alleged 
            injury suffered is particularized as to him. \14\ Neither 
            requirement, the Court held, was met by these legislators. 
            First, the Members did not suffer a particularized loss that 
            distinguished them from their colleagues or from Congress as 
            an entity. Second, the Members did not claim that they had 
            been deprived of anything to which they were personally 
            entitled. ``[A]ppellees' claim of standing is based on loss 
            of political power, not loss of any private right, which 
            would make the injury more concrete. . . . If one of the 
            Members were to retire tomorrow, he would no longer have a 
            claim; the claim would be possessed by his successor 
            instead. The claimed injury thus runs (in a sense) with the 
            Member's seat, a seat which the Member holds . . . as 
            trustee for his constituents, not as a prerogative of 
            personal power.'' \15\
---------------------------------------------------------------------------

                    \12\ 521 U.S. 811 (1997).
                    \13\ The Act itself provided that ``[a]ny Member of 
            Congress or any individual adversely affected'' could sue to 
            challenge the law. 2 U.S.C. Sec. 692(a)(1). After failure of 
            this litigation, the Court in the following Term, on suits 
            brought by claimants adversely affected by the exercise of 
            the veto, held the statute unconstitutional. Clinton v. City 
            of New York, 118 S.Ct. 2091 (1998).
                    \14\ 521 U.S. at 819.
                    \15\ 521 U.S. at 821.
---------------------------------------------------------------------------

                    So, there is no such thing as Member standing? Not 
            necessarily so, because the Court turned immediately to 
            preserving (at least a truncated version of) Coleman v. 
            Miller, \16\ in which the Court had found that 20 of the 40 
            members of a state legislature had standing to sue to 
            challenge the loss of the effectiveness of their votes as a 
            result of a tie-breaker by the lieutenant governor. Although 
            there are several possible explanations for the result in 
            that case, the Court in Raines chose to fasten on a 
            particularly narrow point. ``[O]ur holding in Coleman stands 
            (at most, . . . ) for the proposition that legislators whose 
            votes would have been sufficient to defeat (or enact) a 
            specific legislative Act have standing to sue if that 
            legislative action goes into effect (or does not go into 
            effect), on the ground that their votes have been completely 
            nullified.'' \17\ Because these Members could still pass or 
            reject appropriations bills, vote to repeal the Act, or 
            exempt any appropriations bill from presidential 
            cancellation, the Act did not nullify their votes and thus 
            give them standing. \18\
---------------------------------------------------------------------------

                    \16\ 307 U.S. 433 (1939).
                    \17\ 521 U.S. at 823.
                    \18\ 521 U.S. at 824-26.
---------------------------------------------------------------------------

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

[P. 669, add to n.401:]
                See also National Credit Union Administration v. First 
            National Bank & Trust Co., 522 U.S. 479 (1998), in which the 
            Court found that a bank had standing to challenge an agency 
            ruling expanding the role of employer credit unions to 
            include multi-employer credit unions, despite a statutory 
            limit that any such union could be of groups having a common 
            bond of occupation or association. The Court held that a 
            plaintiff did not have to show it was the congressional 
            purpose to protect its interests. It is sufficient if the 
            interest asserted is ``arguably within the zone of interests 
            to be protected . . . by the statute.'' Id. at 492 (internal 
            quotation marks and citation omitted). But the Court divided 
            5-to-4 in applying the test. And see Bennett v. Spear, 520 
            U.S. 154 (1997).
[P. 670, add to n.405:]
                But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that 
            ``citizen suit'' provision of Endangered Species Act is 
            directed at empowering suits to further environmental 
            concerns does not mean that suitor who alleges economic harm 
            from enforcement of Act lacks standing); FEC v. Akins, 524 
            U.S. 11 (1998) (expansion of standing based on denial of 
            access to information).
Declaratory Judgments
[P. 674, add to n.436:]
                See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
Ripeness
[P. 676, add to n.449:]
                For recent examples of lack of ripeness, see Ohio 
            Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998); Texas v. 
            United States, 523 U.S. 296 (1998).
[P. 678, add to n.457:]
                In the context of ripeness to challenge agency 
            regulations, as to which there is a presumption of available 
            judicial remedies, the Court has long insisted that federal 
            courts should be reluctant to review such regulations unless 
            the effects of administrative action challenged have been 
            felt in a concrete way by the challenging parties, i.e., 
            unless the controversy is ``ripe.'' See, of the older cases, 
            Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet 
            Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner 
            v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967). More 
            recent cases include Reno v. Catholic Social 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, add to n.463:]
                Consider the impact of Cardinal Chemical Co. v. Morton 
            Int'l, Inc., 508 U.S. 83 (1993).
[P. 680, add to n.466:]
                Following Aladdin's Castle, the Court in Northeastern 
            Fla. Ch. 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).
[P. 680, add to n.467:]
                In Arizonans For Official English v. Arizona, 520 U.S. 
            43 (1997), a state employee attacking an English-only work 
            requirement had standing at the time she brought the suit, 
            but she resigned following a decision in the trial court, 
            thus mooting the case before it was taken to the appellate 
            court, which should not have acted to hear and decide it.
[P. 680, add to n.469:]
                But compare Spencer v. Kemna, 523 U.S. 1 (1998).
Retroactivity of Judicial Decisions
[P. 686, add to n.503:]
                For additional elaboration on ``new law,'' see O'Dell v. 
            Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 
            U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). 
            But compare Bousley v. Brooks, 523 U.S. 614 (1998).
[P. 687, add to text following n.509:]

                    Apparently, the Court now has resolved this dispute, 
            although the principal decision is a close five-to-four 
            result. In Harper v. Virginia Dep't of Taxation, \19\ 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.'' \20\ Four Justices continued to adhere to 
            Chevron Oil, however, \21\ so that with one Justice each 
            retired from the different sides one may not regard the 
            issue as definitively settled. \22\
---------------------------------------------------------------------------

                    \19\ 509 U.S. 86 (1993).
                    \20\ 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.
                    \21\ 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.
                    \22\ But see Reynoldsville Casket Co. v. Hyde, 514 
            U.S. 749 (1995) (setting aside a state court refusal to give 
            retroactive effect to a U. S. Supreme Court invalidation of 
            that State's statute of limitations in certain suits, in an 
            opinion by Justice Breyer, Justice Blackmun's successor); 
            Ryder v. United States, 515 U.S. 177, 184-85 (1995) 
            (``whatever the continuing validity of Chevron Oil after'' 
            Harper and Reynoldsville Casket).
---------------------------------------------------------------------------
Political Questions
[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. \23\
---------------------------------------------------------------------------

                    \23\ 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 Hohn v. 
            United States, 118 S.Ct. 1969, 1977-78 (1998), and id. at 
            1981-83 (Justice Scalia dissenting); State Oil Co. v. Khan, 
            522 U.S. 3, 20-2 (1997); Agostini v. Felton, 521 U.S. 203, 
            235-36 (1997), and id. at 523-54 (Justice Souter 
            dissenting); United States v. IBM Corp., 517 U.S. 843, 854-
            56 (1996) (noting principles of following precedent and 
            declining to consider overturning an old precedent when 
            parties have not advanced arguments on the point), with 
            which compare id. at 863 (Justice Kennedy dissenting) 
            (arguing that the United States had presented the point and 
            that the old case ought to be overturned); Adarand 
            Constructors, Inc. v. Pena, 515 U.S. 200, 231-35 (1996) 
            (plurality opinion) (discussing stare decisis, citing past 
            instances of overrulings, and overruling 1990 decision), 
            with which compare the dissents, id. at 242, 264, 271; 
            Seminole Tribe of Florida v. Florida, 517 U.S. 44, 61-73 
            (1996) (discussing policy of stare decisis, why it should 
            not be followed with respect to a 1989 decision, and 
            overruling that precedent), with which compare the dissents, 
            id. at 76, 100. Justices Scalia and Thomas have argued for 
            various departures from precedent. E.g., Oklahoma Tax Comm'n 
            v. Jefferson Lines, Inc., 514 U.S. 175, 200-01 (1995) 
            (Justice Scalia concurring) (negative commerce 
            jurisprudence); Colorado Republican Campaign Comm. v. FEC, 
            518 U.S. 604, 631 (1996) (Justice Thomas concurring in part 
            and dissenting in part) (rejecting framework of Buckley v. 
            Valeo and calling for overruling of part of case). Compare 
            id. at 626 (Court notes those issues not raised or argued).
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, 516 U.S. 349 (1996) (both 
            cases using the new vernacular of ``ancillary 
            jurisdiction'').
[P. 722, add to n.713:]
                In City of Chicago v. International College of Surgeons, 
            522 U.S. 156 (1998), the Court, despite the absence of 
            language making Sec. 1367 applicable, held that the statute 
            gave district courts jurisdiction over state-law claims in 
            cases originating in state court and then removed to federal 
            court.
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 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, 516 U.S. 199 
            (1996), a case involving a death in territorial waters from 
            a jet ski accident, the Court held that Moragne does not 
            provide the exclusive remedy in cases involving the death in 
            territorial waters of a ``nonseafarer''--a person who is 
            neither a seaman covered by the Jones Act nor a longshore 
            worker covered by the LHWCA.
[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. \24\ 
            In an action for damages, the federal courts were faced with 
            the issue of the application either of a state statute, 
            which gave the appellate division of the state courts the 
            authority to determine if an award is excessive or 
            inadequate if it deviates materially from what would be 
            reasonable compensation, or of a federal judicially-created 
            practice of review of awards as so exorbitant that it 
            shocked the conscience of the court. The Court determined 
            that the state statute was both substantive and procedural, 
            which would result in substantial variations between state 
            and federal damage awards depending on whether the state or 
            the federal approach was applied; it then followed the mode 
            of analysis exemplified by those cases emphasizing the 
            importance of federal courts reaching the same outcome as 
            would the state courts, \25\ rather than what had been the 
            prevailing standard, in which the Court balanced state and 
            federal interests to determine which law to apply. \26\ 
            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.'' \27\ Additional 
            decisions will be required to determine which approach, if 
            either, prevails.
---------------------------------------------------------------------------

                    \24\ Gasperini v. Center for Humanities, Inc., 518 
            U.S. 415 (1996). The decision was five-to-four, so that the 
            precedent may or may not be stable for future application.
                    \25\ E.g., Guaranty Trust Co. v. York, 326 U.S. 99 
            (1945).
                    \26\ E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356 
            U.S. 525 (1958).
                    \27\ 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, 518 U.S. 651 (1996). A 1996 
            congressional statute giving to federal courts of appeal a 
            ``gate-keeping'' function over the filing of second or 
            successive habeas petitions limited further review, 
            including denying the Supreme Court appellate review of 
            circuit court denials of motions to file second or 
            successive habeas petitions. Pub. L. 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., 517 U.S. 706 
            (1996), an exercise in Burford abstention, the Court held 
            that federal courts have power to dismiss or remand cases 
            based on abstention principles only where relief being 
            sought is equitable or otherwise discretionary but may not 
            do so in common-law actions for damages.
Habeas Corpus
[P. 816, add to n.1256:]
                See also O'Dell v. Netherland, 521 U.S. 151 (1997); 
            Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. 
            Netherland, 518 U.S. 152 (1996). But compare Bousley v. 
            Brooks, 523 U.S. 614 (1998).
[P. 818, add to n.1268:]
                In Bousley v. Brooks, 523 U.S. 614 (1998), a federal 
            post-conviction relief case, petitioner had pled guilty to a 
            federal firearms offense. Subsequently, the Supreme Court 
            interpreted more narrowly the elements of the offense than 
            had the trial court in Bousley's case. The Court held that 
            Bousley by his plea had defaulted, but that he might be able 
            to demonstrate ``actual innocence'' so as to excuse the 
            default if he could show on remand that it was more likely 
            than not that no reasonable juror would have convicted him 
            of the offense, properly defined.
[P. 818, add to text following n.1270:]

                    The Court continues, with some modest exceptions, to 
            construe habeas jurisdiction quite restrictively, but it has 
            now been joined by new congressional legislation that is 
            also restrictive. In Herrera v. Collins, \28\ the Court 
            appeared, though ambiguously, to take the position that, 
            while it requires a showing of actual innocence to permit a 
            claimant to bring a successive or abusive petition, a claim 
            of innocence is not alone sufficient to enable a claimant to 
            obtain review of his conviction on habeas. Petitioners are 
            entitled in federal habeas courts to show that they are 
            imprisoned in violation of the Constitution, not to seek to 
            correct errors of fact. But a claim of innocence does not 
            bear on the constitutionality of one's conviction or 
            detention, and the execution of one claiming actual 
            innocence would not itself violate the Constitution. \29\
---------------------------------------------------------------------------

                    \28\ 506 U.S. 390 (1993).
                    \29\ 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, \30\ 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.'' \31\ 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.'' \32\
---------------------------------------------------------------------------

                    \30\ 513 U.S. 298 (1995).
                    \31\ 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).
                    \32\ 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, \33\ Congress imposed tight new restrictions on 
            successive or abusive petitions, including making the 
            circuit courts ``gate keepers'' in permitting or denying the 
            filing of such petitions, with bars to appellate review of 
            these decisions, provisions that in part were upheld in 
            Felker v. Turpin. \34\ 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[.]'' \35\
---------------------------------------------------------------------------

                    \33\ 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. For a narrowly 
            decided case weakening somewhat the congressional provisions 
            on ``gate-keeping,'' see Hohn v. United States, 118 S.Ct. 
            1969 (1998).
                    \34\ 518 U.S. 651 (1996).
                    \35\ The amended 28 U.S.C. Sec. 2254(d) (emphasis 
            supplied). On the constitutionality and application of this 
            provision, see the various opinions in Lindh v. Murphy, 96 
            F.3d 856 (7th Cir. 1996) (en banc), rev'd on other grounds, 
            521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th 
            Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v. 
            Washington, 106 F.3d 742 (7th Cir. 1997); O'Brien v. Dubois, 
            145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865 
            (4th Cir. 1998), cert. denied, 119 S.Ct. 844 (1999).
                               ARTICLE IV

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

                    The Court returned to the privileges-and-immunities 
            restrictions upon disparate state taxation of residents and 
            nonresidents in Lunding v. New York Tax Appeals Tribunal. 
            \36\ In this case, the State denied nonresidents any 
            deduction from taxable income for alimony payments, although 
            it permitted residents to deduct such payments. While 
            observing that approximate equality between residents and 
            nonresidents was required by the clause, the Court 
            acknowledged that precise equality was neither necessary nor 
            in most instances possible. But it was required of the 
            challenged State that it demonstrate a ``substantial 
            reason'' for the disparity, and the discrimination must bear 
            a ``substantial relationship'' to that reason. \37\ A State, 
            under this analysis, may not deny nonresidents a general tax 
            exemption provided to residents that would reduce their tax 
            burdens, but it could limit specific expense deductions 
            based on some relationship between the expenses and their 
            in-state property or income. Here, the State flatly denied 
            the exemption. Moreover, the Court rejected various 
            arguments that had been presented, finding that most of 
            those arguments, while they might support targeted denials 
            or partial denials, simply reiterated the State's contention 
            that it need not afford any exemptions at all.
---------------------------------------------------------------------------

                    \36\ 522 U.S. 287 (1998).
                    \37\ 522 U.S. at 298.
                               ARTICLE VI

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

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

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

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

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

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

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

[P. 974, add to n.26 following Lee v. Weisman citation:]
                Zobrest v. Catalina Foothills School District, 509 U.S. 
            1 (1993) (upholding provision of sign-language interpreter 
            to deaf student attending parochial school); Board of 
            Education of Kiryas Joel Village v. Grumet, 512 U.S. 687 
            (1994) (invalidating law creating special school district 
            for village composed exclusively of members of one religious 
            sect); Rosenberger v. University of Virginia, 515 U.S. 819 
            (1995) (upholding the extension of a university subsidy of 
            student publications to a student religious publication).
[P. 974, change text following n.26 to read:]

                    Nonetheless, the Court did employ the Lemon tests in 
            its most recent establishment clause decision, \1\ and it 
            remains the case that those tests have served as the primary 
            standard of establishment clause validity for the past three 
            decades. Justice Kennedy has proffered ``coercion'' as an 
            alternative test for violations of the establishment clause, 
            \2\ but that test has been criticized on the grounds it 
            would eliminate a principal distinction between the 
            establishment clause and the free exercise clause and make 
            the former a ``virtual nullity.'' \3\ Justice O'Connor has 
            suggested ``endorsement'' as an alternative test, i.e., that 
            the establishment clause is violated if the government 
            intends its action to endorse or disapprove of religion or 
            if a ``reasonable observer'' would perceive the government's 
            action as such an endorsement or disapproval; \4\ but others 
            have criticized that test as too amorphous to provide 
            certain guidance. \5\ She has also suggested that it may be 
            inappropriate to try to shoehorn all establishment clause 
            cases into one test, and has called instead for recognition 
            that different contexts may call for different approaches. 
            \6\
---------------------------------------------------------------------------

                    \1\ Agostini v. Felton, 521 U.S. 203 (1997) 
            (upholding under the Lemon tests the provision of remedial 
            educational services by public school teachers to sectarian 
            elementary and secondary schoolchildren on the premises of 
            the sectarian schools).
                    \2\ County of Allegheny v. Greater Pittsburgh ACLU, 
            492 U.S. 573, 655 (1989) (Justice Kennedy concurring in part 
            and dissenting in part); and Lee v. Weisman, 505 U.S. 577 
            (1992).
                    \3\ Lee v. Weisman, 505 U.S. 577, 621 (Souter, J., 
            concurring). See also County of Allegheny v. Greater 
            Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (O'Connor, J., 
            concurring in part and concurring in the judgment).
                    \4\ 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, 512 U.S. 687, 712 (1994) 
            (concurring).
                    \5\ County of Allegheny v. Greater Pittsburgh ACLU, 
            492 U.S. 573, 655 (1989) (Justice Kennedy, concurring in the 
            judgment in part and dissenting in part); and Capitol Square 
            Review Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (Justice 
            Scalia).
                    \6\ Board of Educ. of Kiryas Joel Village v. Grumet, 
            512 U.S. 687, 718-723 (1994) (O'Connor, J., concurring in 
            part and concurring in the judgment).
---------------------------------------------------------------------------
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.'' 
            \7\
---------------------------------------------------------------------------

                    \7\ Board of Educ. of Kiryas Joel Village v. Grumet, 
            512 U.S. 687, 709 (1994) (citing Torcaso v. Watkins, 367 
            U.S. 488, 492-95 (1961)).
---------------------------------------------------------------------------
Financial Assistance to Church-Related Institutions
[P. 980, strike n.54 and accompanying text:]
[P. 984, add to text following n.74:]

                    In two more recent decisions, however, the Court 
            reversed course with respect to the constitutionality of 
            public school teachers providing educational services on the 
            premises of pervasively sectarian schools. First, in Zobrest 
            v. Catalina Foothills School District \8\ the Court held the 
            public subsidy of a sign-language interpreter for a deaf 
            student attending a parochial school to create no primary 
            effect or entanglement problems. The payment did not relieve 
            the school of an expense that it would otherwise have borne, 
            the Court stated, and the interpreter had no role in 
            selecting or editing the content of any of the lessons. 
            Reviving the child benefit theory of its earlier cases, the 
            Court said that ``[t]he service at issue in this case is 
            part of a general government program that distributes 
            benefits neutrally to any child qualifying as `handicapped' 
            under the IDEA, without regard to the `sectarian-
            nonsectarian, or public-nonpublic nature' of the school the 
            child attends.'' Secondly, and more pointedly, the Court in 
            Agostini v. Felton \9\ overturned both the result and the 
            reasoning of its decision in Aguilar v. Felton \10\ striking 
            down the Title I program as administered in New York City as 
            well as the analogous parts of its decisions in Meek v. 
            Pittenger \11\ and Grand Rapids School District v. Ball. 
            \12\ The assumptions on which those decisions had rested, 
            the Court stated, had been ``undermined'' by its more recent 
            decisions. Decisions such as Zobrest and Witters v. 
            Washington Department of Social Services, \13\ it said, had 
            repudiated the notions that the placement of a public 
            employee in a sectarian school creates an ``impermissible 
            symbolic link'' between government and religion, that ``all 
            government aid that directly aids the educational function 
            of religious schools'' is constitutionally forbidden, that 
            public teachers in a sectarian school necessarily pose a 
            serious risk of inculcating religion, and that ``pervasive 
            monitoring of [such] teachers is required.'' The proper 
            criterion under the primary effect prong of the Lemon test, 
            the Court asserted, is religious neutrality, i.e., whether 
            ``aid is allocated on the basis of neutral, secular criteria 
            that neither favor nor disfavor religion, and is made 
            available to both religious and secular beneficiaries on a 
            nondiscriminatory basis.'' \14\ Finding the Title I program 
            to meet that test, the Court concluded that ``accordingly, 
            we must acknowledge that Aguilar, as well as the portion of 
            Ball addressing Grand Rapids' Shared Time program, are no 
            longer good law.'' \15\
---------------------------------------------------------------------------

                    \8\ 509 U.S. 1 (1993).
                    \9\ 521 U.S. 203 (1997).
                    \10\ 473 U.S. 402 (1985).
                    \11\ 421 U.S. 349 (1975).
                    \12\ 473 U.S. 373 (1985).
                    \13\ 474 U.S. 481 (1986).
                    \14\ Evidencing the continuing vitality of the Lemon 
            tests, the Court analyzed the constitutionality of the Title 
            I program in Agostini under both the primary effect and 
            entanglement tests. But in so doing it eliminated 
            entanglement as a separate test. ``[T]he factors we use to 
            assess whether an entanglement is `excessive,''' the Court 
            stated, ``are similar to the factors we use to examine 
            `effect.''' ``Thus,'' it concluded, ``it is simplest to 
            recognize why entanglement is significant and treat it--as 
            we did in Walz--as an aspect of the inquiry into a statute's 
            effect.'' Agostini v. Felton, supra, at 232, 233.
                    \15\ Justice Souter, joined by Justices Stevens and 
            Ginsburg, dissented from the Court's ruling, contending that 
            the establishment clause mandates a ``flat ban on [the] 
            subsidization'' of religion (521 U.S. at 243) and that the 
            Court's contention that recent cases had undermined the 
            reasoning of Aguilar was a ``mistaken reading'' of the 
            cases. Id. at 248. Justice Breyer joined in the second 
            dissenting argument.
---------------------------------------------------------------------------
[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; \16\ 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;'' \17\ 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. \18\ These 
            cases make clear that the Establishment Clause does not 
            necessarily trump the First Amendment's protection of 
            freedom of speech; in regulating private speech in a public 
            forum, government may not justify discrimination against 
            religious viewpoints as necessary to avoid creating an 
            ``establishment'' of religion.
---------------------------------------------------------------------------

                    \16\ 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.
                    \17\ Rosenberger v. University of Virginia, 515 U.S. 
            819 (1995).
                    \18\ Capitol Square Review Bd. v. Pinette, 515 U.S. 
            753 (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, \19\ the 
            Court distinguished privately sponsored from governmentally 
            sponsored religious displays on public property. There the 
            Court ruled that Ohio violated free speech rights by 
            refusing to allow the Ku Klux Klan to display an unattended 
            cross during the Christmas season in a publicly owned plaza 
            outside the Ohio Statehouse. Because the plaza was a public 
            forum in which the State had allowed a broad range of 
            speakers and a variety of unattended displays, the State 
            could regulate the expressive content of such speeches and 
            displays only if the restriction was necessary, and narrowly 
            drawn, to serve a compelling state interest. The Court 
            recognized that compliance with the Establishment Clause can 
            be a sufficiently compelling reason to justify content-based 
            restrictions on speech, but saw no need to apply this 
            principle when permission to display a religious symbol is 
            granted through the same procedures, and on the same terms, 
            required of other private groups seeking to convey non-
            religious messages.
---------------------------------------------------------------------------

                    \19\ 515 U.S. 753 (1995). The Court was divided 7-2 
            on the merits of Pinette, a vote that obscured continuing 
            disagreement over the proper analytical approach. The 
            portions of Justice Scalia's opinion that formed the opinion 
            of the Court were joined by Chief Justice Rehnquist and by 
            Justices O'Connor, Kennedy, Souter, Thomas, and Breyer. A 
            separate part of Justice Scalia's opinion, joined only by 
            the Chief Justice and by Justices Kennedy and Thomas, 
            disputed the assertions of Justices O'Connor, Souter, and 
            Breyer that the ``endorsement'' test should be applied. 
            Dissenting Justice Stevens thought that allowing the display 
            on the Capitol grounds did carry ``a clear image of 
            endorsement,'' and Justice Ginsburg's brief opinion 
            seemingly agreed with that conclusion.
---------------------------------------------------------------------------
Miscellaneous
[P. 1005, add to text at end of section:]

                    Using somewhat similar reasoning, the Court in Board 
            of Education of Kiryas Joel Village v. Grumet, \20\ 
            invalidated a New York law creating a special school 
            district for an incorporated village composed exclusively of 
            members of one small religious sect. The statute failed 
            ``the test of neutrality,'' the Court concluded, since it 
            delegated power ``to an electorate defined by common 
            religious belief and practice, in a manner that fails to 
            foreclose religious favoritism.'' It was the ``anomalously 
            case-specific nature of the legislature's exercise of 
            authority'' that left the Court ``without any direct way to 
            review such state action'' for conformity with the 
            neutrality principle. Because the village did not receive 
            its governmental authority simply as one of many communities 
            eligible under a general law, the Court explained, there was 
            no way of knowing whether the legislature would grant 
            similar benefits on an equal basis to other religious and 
            nonreligious groups.
---------------------------------------------------------------------------

                    \20\ 512 U.S. 687 (1994). Only four Justices 
            (Souter, Blackmun, Stevens, and Ginsburg) thought that the 
            Grendel's Den principle applied; in their view the 
            distinction that the delegation was to a village electorate 
            rather than to a religious body ``lack[ed] constitutional 
            significance'' under the peculiar circumstances of the case.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
[P. 1007, add to n.188:]
                Board of Educ. of Kiryas Joel Village v. Grumet, 512 
            U.S. 687, 706-07 (1994) (``accommodation is not a principle 
            without limits;'' one limitation is that ``neutrality as 
            among religions must be honored'').
The Jehovah's Witnesses Cases
[P. 1010, add to n. 201:]
                Church of the Lukumi Babalu Aye, Inc. v. City of 
            Hialeah, 508 U.S. 520 (1993) (Santeria faith).
Free Exercise Exemption From General Governmental 
    Requirements
[P. 1018, add new 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.'' \21\
---------------------------------------------------------------------------

                    \21\ 508 U.S. 520, 531 (1993).
---------------------------------------------------------------------------
[P. 1019, add new paragraphs following n.257:]

                    Because of the broad ramifications of Smith, the 
            political processes were soon utilized in an attempt to 
            provide additional legislative protection for religious 
            exercise. In the Religious Freedom Restoration Act of 1993 
            (RFRA), \22\ Congress sought to supersede Smith and 
            substitute a statutory rule of decision for free exercise 
            cases. 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.'' \23\ But this 
            legislative effort was partially frustrated in 1997 when the 
            Court in City of Boerne v. Flores \24\ held the Act to be 
            unconstitutional as applied to the states, 6-3. In applying 
            RFRA to the states Congress had utilized its power under 
            Sec. 5 of the Fourteenth Amendment to enact ``appropriate 
            legislation'' to enforce the substantive protections of the 
            Amendment, including the religious liberty protections 
            incorporated in the due process clause. But the Court held 
            that RFRA exceeded Congress' power under Sec. 5, because the 
            measure did not simply enforce a constitutional right but 
            substantively altered that right. ``Congress,'' the Court 
            said, ``does not enforce a constitutional right by changing 
            what the right is.'' \25\ Moreover, it said, RFRA ``reflects 
            a lack of proportionality or congruence between the means 
            adopted and the legitimate end to be achieved . . . [and] is 
            a considerable congressional intrusion into the States' 
            traditional prerogatives and general authority to regulate 
            for the health and welfare of their citizens.'' \26\ 
            ``RFRA,'' the Court concluded, ``contradicts vital 
            principles necessary to maintain separation of powers and 
            the federal balance.'' \27\
---------------------------------------------------------------------------

                    \22\ Pub. L. 103-141, 107 Stat. 1488 (1993); 42 
            U.S.C. Sec. Sec. 2000bb to 2000bb-4.
                    \23\ 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).
                    \24\ 117 S. Ct. 2157 (1997).
                    \25\ 521 U.S. at 519.
                    \26\ 521 U.S. at 533-34.
                    \27\ 521 U.S. at 536.
---------------------------------------------------------------------------

                    Boerne does not close the books on Smith, however. 
            It remains an open issue whether RFRA remains valid as 
            applied to the federal government, and Congress is likely to 
            attempt to use powers other than Sec. 5 to try to re-apply a 
            strict scrutiny standard to the states. \28\ These issues 
            ensure continuing litigation over the appropriate test for 
            free exercise cases. \29\
---------------------------------------------------------------------------

                    \28\ See H.R. 4019 and S. 2148, 105th Cong., 2d 
            Sess. (1998) (using Congress' power over interstate commerce 
            and its power to attach conditions to federal spending as 
            the means of re-applying a strict scrutiny standard to the 
            states with respect to the exercise of religion).
                    \29\ See, e.g., In re Young, 141 F.3d 854 (8th 
            Cir.), cert. denied, 119 S. Ct. 43 (1998) (lower court held 
            RFRA to be constitutional as applied to federal bankruptcy 
            law).
---------------------------------------------------------------------------
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. \30\ This leads to a ``state action'' (or 
            ``governmental action'') limitation similar to that 
            applicable to the Fourteenth Amendment. \31\ 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.'' \32\ 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.'' 
            \33\ The relationship of the government to broadcast 
            licensees affords other opportunities to explore the breadth 
            of ``governmental action.'' \34\
---------------------------------------------------------------------------

                    \30\ Through interpretation of the Fourteenth 
            Amendment, the prohibition extends to the States as well. 
            See discussion on incorporation, main text, pp. 957-64.
                    \31\ See discussion on state action, main text, pp. 
            1786-1802.
                    \32\ CBS v. Democratic Nat'l Comm., 412 U.S. 94, 115 
            (1973) (opinion of Chief Justice Burger).
                    \33\ Lebron v. National R.R. Passenger Corp., 513 
            U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100 U.S. 
            339, 346-47 (1880)). The Court refused to be bound by the 
            statement in Amtrak's authorizing statute that the 
            corporation is ``not . . . an agency or establishment of the 
            United States Government.'' This assertion can be effective 
            ``only for purposes of matters that are within Congress' 
            control,'' the Court explained. ``[I]t is not for Congress 
            to make the final determination of Amtrak's status as a 
            governmental entity for purposes of determining the 
            constitutional rights of citizens affected by its actions.'' 
            513 U.S. at 392.
                    \34\ 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.177:]
                The First Amendment does not preclude the Government 
            from ``compel[ling] financial contributions that are used to 
            fund advertising,'' provided such contributions do not 
            finance ``political or ideological'' views. Glickman v. 
            Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) 
            (upholding Secretary of Agriculture's marketing orders that 
            assessed fruit producers to cover the expenses of generic 
            advertising of California fruit).
[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. \35\ To do so would require parade 
            organizers to promote a message they did not wish to 
            promote. The Roberts and New York City cases were 
            distinguished as not involving ``a trespass on the 
            organization's message itself.'' \36\ 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.'' \37\
---------------------------------------------------------------------------

                    \35\ 515 U.S. 557 (1995).
                    \36\ Id. at 580.
                    \37\ Id. at 580-81.
---------------------------------------------------------------------------
--Political Association
[P. 1063, add to text before first full paragraph on page:]

                    In 1996 the Court extended Elrod and Branti to 
            protect independent government contractors. \38\
---------------------------------------------------------------------------

                    \38\ O'Hare Truck Serv., Inc. v. City of Northlake, 
            518 U.S. 712 (1996) (allegation that city removed 
            petitioner's company from list of those offered towing 
            business on a rotating basis, in retaliation for 
            petitioner's refusal to contribute to mayor's campaign, and 
            for his support of mayor's opponent, states a cause of 
            action under the First Amendment). See also Board of County 
            Comm'rs v. Umbehr, 518 U.S. 668 (1996) (termination or non-
            renewal of a public contract in retaliation for the 
            contractor's speech on a matter of public concern can 
            violate the First Amendment).
---------------------------------------------------------------------------
Particular Governmental Regulations 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, \39\ 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. \40\ 
            The Court emphasized further difficulties with the ``crudely 
            crafted'' honoraria ban: it was limited to expressive 
            activities and had no application to other sources of 
            outside income, it applied when neither the subjects of 
            speeches and articles nor the persons or groups paying for 
            them bore any connection to the employee's job 
            responsibilities, and it exempted a ``series'' of speeches 
            or articles without also exempting individual articles and 
            speeches. These ``anomalies'' led the Court to conclude that 
            the ``speculative benefits'' of the ban were insufficient to 
            justify the burdens it imposed on expressive activities. 
            \41\
---------------------------------------------------------------------------

                    \39\ 513 U.S. 454 (1995).
                    \40\ 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.''
                    \41\ 513 U.S. at 477.
---------------------------------------------------------------------------
--Government as Employer: Free Expression Generally
[P. 1089, add to text following n.113:]

                    The protections applicable to government employees 
            have been extended to independent government contractors, 
            the Court announcing that ``the Pickering balancing test, 
            adjusted to weigh the government's interests as contractor 
            rather than as employer, determines the extent of their 
            protection.'' \42\
---------------------------------------------------------------------------

                    \42\ Board of County Comm'rs v. Umbehr, 518 U.S. 
            668, 673 (1996).
---------------------------------------------------------------------------
[P. 1089, add to n.116:]
                In Waters v. Churchill, 511 U.S. 661 (1994), the Court 
            grappled with what procedural protections may be required by 
            the First Amendment when public employees are dismissed on 
            speech-related grounds, but reached no consensus.
--Government as Regulator of the Electoral Process: 
    Elections
[P. 1095, add to text following n.143:]

                    Minnesota, however, could prohibit a candidate from 
            appearing on the ballot as the candidate of more than one 
            party. \43\ The Court wrote that election ``[r]egulations 
            imposing severe burdens on plaintiffs' [associational] 
            rights must be narrowly tailored and advance a compelling 
            state interest. Lesser burdens, however, trigger less 
            exacting review, and a State's important regulatory 
            interests will usually be enough to justify reasonable 
            nondiscriminatory restrictions.'' \44\ Minnesota's ban on 
            ``fusion'' candidates was not severe, as it left a party 
            that could not place another party's candidate on the ballot 
            free to communicate its preference for that candidate by 
            other means, and the ban was justified by ``valid state 
            interests in ballot integrity and political stability.'' 
            \45\
---------------------------------------------------------------------------

                    \43\ Timmons v. Twin City Area New Party, 520 U.S. 
            351 (1997).
                    \44\ Id. at 358 (internal quotation marks omitted).
                    \45\ Id. at 369-70.
---------------------------------------------------------------------------
[P. 1097, add to n.150:]
                See also Colorado Republican Campaign Comm. v. FEC, 518 
            U.S. 604 (1996) (the First Amendment bars application of the 
            Party Expenditure Provision of the Federal Election Campaign 
            Act, 2 U.S.C. Sec. 441a(d)(3), to expenditures that the 
            political party makes independently, without coordination 
            with the candidate).
--Government and the Power of the Purse
[P. 1113, add to text following n.236:]

                    In National Endowment for the Arts v. Finley, the 
            Supreme Court upheld the constitutionality of a federal 
            statute requiring the NEA, in awarding grants, to ``tak[e] 
            into consideration general standards of decency and respect 
            for the diverse beliefs and values of the American public.'' 
            \46\ The Court acknowledged that, if the statute were 
            ``applied in a manner that raises concern about the 
            suppression of disfavored viewpoints,'' \47\ then such 
            application might be unconstitutional. The statute on its 
            face, however, is constitutional because it ``imposes no 
            categorical requirement,'' being merely ``advisory.'' \48\ 
            ``Any content-based considerations that may be taken into 
            account in the grant-making process are a consequence of the 
            nature of arts funding. . . . The `very assumption' of the 
            NEA is that grants will be awarded according to the 
            `artistic worth of competing applications,' and absolute 
            neutrality is simply `inconceivable.' '' \49\ The Court also 
            found that the terms of the statute, ``if they appeared in a 
            criminal statute or regulatory scheme, . . . could raise 
            substantial vagueness concerns. . . . But when the 
            Government is acting as patron rather than as sovereign, the 
            consequences of imprecision are not constitutionally 
            severe.'' \50\
---------------------------------------------------------------------------

                    \46\ 118 S. Ct. 2168, 2171 (1998).
                    \47\ Id. at 2179.
                    \48\ Id. at 2176. Justice Scalia, in a concurring 
            opinion joined by Justice Thomas, claimed that this 
            interpretation of the statute ``gutt[ed] it.'' Id. at 2180. 
            He believed that the statute ``establishes content- and 
            viewpoint-based criteria upon which grant applications are 
            to be evaluated. And that is perfectly constitutional.'' Id.
                    \49\ Id. at 2177, 2178.
                    \50\ Id. at 2179.
---------------------------------------------------------------------------
Governmental Regulation of Communications Industries
--Commercial Speech
[P. 1116, add to n.12:]
                Shapero was distinguished in Florida Bar v. Went For It, 
            Inc., 515 U.S. 618 (1995), a 5-4 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.'' 515 U.S. at 
            637 (quoting Shapero, 486 U.S. at 475).
[P. 1116, add to text following n.13:]

                    , or prohibit a certified public accountant from 
            holding herself out as a certified financial planner. \51\
---------------------------------------------------------------------------

                    \51\ Ibanez v. Florida Bd. of Accountancy, 512 U.S. 
            136 (1994) (also ruling that Accountancy Board could not 
            reprimand the CPA, who was also a licensed attorney, for 
            truthfully listing her CPA credentials in advertising for 
            her law practice).
---------------------------------------------------------------------------
[P. 1116, add to text following n.14:]

                    The Court later refused, however, to extend this 
            principle to in-person solicitation by certified public 
            accountants, explaining that CPAs, unlike attorneys, are not 
            professionally ``trained in the art of persuasion,'' and 
            that the typical business executive client of a CPA is ``far 
            less susceptible to manipulation'' than was the accident 
            victim in Ohralik. \52\ 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.'' \53\
---------------------------------------------------------------------------

                    \52\ Edenfield v. Fane, 507 U.S. 761, 775 (1993).
                    \53\ Id. at 777.
---------------------------------------------------------------------------
[P. 1117, delete last two sentences of paragraph continued 
    from p. 1116, and substitute the following:]

                    The Court has developed a four-pronged test to 
            measure the validity of restraints upon commercial 
            expression.

[P. 1117, add to n.19 following San Francisco Arts & 
    Athletics cite:]
                Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) 
            (government's interest in curbing strength wars among 
            brewers is substantial, but interest in facilitating state 
            regulation of alcohol is not substantial). Contrast United 
            States v. Edge Broadcasting Co., 509 U.S. 418 (1993), 
            finding a substantial federal interest in facilitating state 
            restrictions on lotteries. ``Unlike the situation in Edge 
            Broadcasting,'' the Coors Court explained, ``the policies of 
            some States do not prevent neighboring States from pursuing 
            their own alcohol-related policies within their respective 
            borders.'' 514 U.S. at 486.
[P. 1118, add to n.20 following Bolger cite:]
                Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) 
            (prohibition on display of alcohol content on beer labels 
            does not directly and materially advance government's 
            interest in curbing strength wars among brewers, given the 
            inconsistencies and ``overall irrationality'' of the 
            regulatory scheme); Edenfield v. Fane, 507 U.S. 761 (1993) 
            (Florida's ban on in-person solicitation by certified public 
            accountants does not directly advance its legitimate 
            interests in protecting consumers from fraud, protecting 
            consumer privacy, and maintaining professional independence 
            from clients).
[P. 1118, add to text following n.20:]

                    Instead, the regulation must ``directly advance'' 
            the governmental interest. The Court resolves this issue 
            with reference to aggregate effects, and does not limit its 
            consideration to effects on the challenging litigant. \54\
---------------------------------------------------------------------------

                    \54\ 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., 514 U.S. 476 (1995) (there 
            are less intrusive alternatives--e.g., direct limitations on 
            alcohol content of beer--to prohibition on display of 
            alcohol content on beer label).
[P. 1118, add to n.22:]
                In a 1993 opinion the Court elaborated on the difference 
            between ``reasonable fit'' and least restrictive 
            alternative. ``A regulation need not be `absolutely the 
            least severe that will achieve the desired end,' but if 
            there are numerous and obvious less-burdensome alternatives 
            to the restriction . . ., that is certainly a relevant 
            consideration in determining whether the `fit' between ends 
            and means is reasonable.'' City of Cincinnati v. Discovery 
            Network, Inc., 507 U.S. 410, 417 n.13 (1993).
[P. 1118, delete remainder of section after n.22, and add 
    the following:]

                    The ``reasonable fit'' standard has some teeth, the 
            Court made clear in City of Cincinnati v. Discovery Network, 
            Inc., \55\ 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. \56\ 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.'' \57\ By contrast, the 
            Court upheld a federal law that prohibited broadcast of 
            lottery advertisements by a broadcaster in a state that 
            prohibits lotteries, while allowing broadcast of such ads by 
            stations in states that sponsor lotteries. There was a 
            ``reasonable fit'' between the restriction and the asserted 
            federal interest in supporting state anti-gambling policies 
            without unduly interfering with policies of neighboring 
            states that promote lotteries. \58\ The prohibition 
            ``directly served'' the congressional interest, and could be 
            applied to a broadcaster whose principal audience was in an 
            adjoining lottery state, and who sought to run ads for that 
            state's lottery. \59\
---------------------------------------------------------------------------

                    \55\ 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.
                    \56\ Id. at 424.
                    \57\ Id. at 426. The Court also noted the ``minute'' 
            effect of removing 62 ``commercial'' newsracks while 1,500 
            to 2,000 other newsracks remained in place. Id. at 418.
                    \58\ United States v. Edge Broadcasting Co., 509 
            U.S. 418 (1993).
                    \59\ Id. at 428.
---------------------------------------------------------------------------

                    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.'' \60\ Subsequently, however, the Court has 
            eschewed reliance on Posadas, \61\ 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, \62\ 
            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.'' \63\ 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. \64\
---------------------------------------------------------------------------

                    \60\ 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.
                    \61\ In Rubin v. Coors Brewing Co., 514 U.S. 476 
            (1995) (invalidating a federal ban on revealing alcohol 
            content on malt beverage labels), the Court rejected 
            reliance on Posadas, pointing out that the statement in 
            Posadas had been made only after a determination that the 
            advertising could be upheld under Central Hudson. The Court 
            found it unnecessary to consider the greater-includes-lesser 
            argument in United States v. Edge Broadcasting Co., 509 U.S. 
            418, 427 (1993), upholding through application of Central 
            Hudson principles a ban on broadcast of lottery ads.
                    \62\ 517 U. S. 484 (1996).
                    \63\ Id. at 510 (opinion of Stevens, joined by 
            Justices Kennedy, Thomas, and Ginsburg). The Stevens opinion 
            also dismissed the Posadas ``greater-includes-the-lesser 
            argument'' as ``inconsistent with both logic and well-
            settled doctrine,'' pointing out that the First Amendment 
            ``presumes that attempts to regulate speech are more 
            dangerous than attempts to regulate conduct.'' Id. at 511-
            512.
                    \64\ Id. at 1531 (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. \65\ The rule against prior restraints may be 
            inapplicable, \66\ and disseminators of commercial speech 
            are not protected by the overbreadth doctrine. \67\
---------------------------------------------------------------------------

                    \65\ Virginia State Bd. of Pharmacy v. Virginia 
            Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates 
            v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But in 
            Linmark Associates v. Township of Willingboro, 431 U.S. 85, 
            93-94 (1977), the Court refused to accept a times, places, 
            and manner defense of an ordinance prohibiting ``For Sale'' 
            signs on residential lawns. First, ample alternative 
            channels of communication were not available, and, second, 
            the ban was seen as a content limitation.
                    \66\ 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).
                    \67\ 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. \68\ 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 \69\ may be more likely to 
            pass the test \70\ than regulations designed to implement 
            general health, safety, or moral concerns. \71\ As the 
            governmental interest becomes further removed from 
            protecting a fair bargaining process, it may become more 
            difficult to establish the absence of less burdensome 
            regulatory alternatives and the presence of a ``reasonable 
            fit'' between the commercial speech restriction and the 
            governmental interest. \72\
---------------------------------------------------------------------------

                    \68\ 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).
                    \69\ 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 
            484, 501 (1996) (opinion of Justice Stevens, joined by 
            Justices Kennedy and Ginsburg).
                    \70\ 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'').
                    \71\ Compare United States v. Edge Broadcasting Co., 
            509 U.S. 418 (1993) (upholding federal law supporting state 
            interest in protecting citizens from lottery information) 
            and Florida Bar v. Went For It, Inc., 515 U.S. 618, (1995) 
            (upholding a 30-day ban on targeted, direct-mail 
            solicitation of accident victims by attorneys, not because 
            of any presumed susceptibility to overreaching, but because 
            the ban ``forestall[s] the outrage and irritation with the 
            . . . legal profession that the [banned] solicitation . . . 
            has engendered'') with Rubin v. Coors Brewing Co., 514 U.S. 
            476 (1995) (striking down federal statute prohibiting 
            display of alcohol content on beer labels) and 44 
            Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) 
            (striking down state law prohibiting display of retail 
            prices in ads for alcoholic beverages).
                    \72\ Justice Stevens has criticized the Central 
            Hudson test because it seemingly allows regulation of any 
            speech propounded in a commercial context regardless of the 
            content of that speech. ``[A]ny description of commercial 
            speech that is intended to identify the category of speech 
            entitled to less First Amendment protection should relate to 
            the reasons for permitting broader regulation: namely, 
            commercial speech's potential to mislead.'' Rubin v. Coors 
            Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion). 
            The Justice repeated these views in 1996: ``when a State 
            entirely prohibits the dissemination of truthful, 
            nonmisleading commercial messages for reasons unrelated to 
            the preservation of a fair bargaining process, there is far 
            less reason to depart from the rigorous review that the 
            First Amendment generally demands.'' 44 Liquormart, Inc. v. 
            Rhode Island, 517 U.S. 484, 501 (1996) (a portion of the 
            opinion joined by Justices Kennedy and Ginsburg).
---------------------------------------------------------------------------
--Radio and Television
[P. 1126, delete last paragraph on page:]
--Governmentally Compelled Right of Reply to Newspapers
[P. 1127, add to n.65:]
                See also Hurley v. Irish-American Gay Group, 515 U.S. 
            557 (1995) (state may not compel parade organizer to allow 
            participation by a parade unit proclaiming message that 
            organizer does not wish to endorse).
[P. 1127, add new section following n.65:]
--Regulation of Cable Television

                    The Court has recognized that cable television 
            ``implicates First Amendment interests,'' since a cable 
            operator communicates ideas through selection of original 
            programming and through exercise of editorial discretion in 
            determining which stations to include in its offering. \73\ 
            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. \74\ Cable 
            does, however, have unique characteristics that justify 
            regulations that single out cable for special treatment. 
            \75\ The Court in Turner Broadcasting System v. FCC \76\ 
            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.'' \77\ The regulations could therefore be measured 
            by the ``intermediate level of scrutiny'' set forth in 
            United States v. O'Brien. \78\ 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 
            \79\ 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, \80\ and a plurality \81\ rejected 
            assertions that public forum analysis, \82\ or a rule giving 
            cable operators' editorial rights ``general primacy'' over 
            the rights of programmers and viewers, \83\ should govern.
---------------------------------------------------------------------------

                    \73\ City of Los Angeles v. Preferred 
            Communications, 476 U.S. 488 (1986) (leaving for future 
            decision how the operator's interests are to be balanced 
            against a community's interests in limiting franchises and 
            preserving utility space); Turner Broadcasting System v. 
            FCC, 512 U.S. 622, 636 (1994).
                    \74\ Turner Broadcasting System v. FCC, 512 U.S. 
            622, 638-639 (1994).
                    \75\ Id. at 661 (referring to the ``bottleneck 
            monopoly power'' exercised by cable operators in determining 
            which networks and stations to carry, and to the resulting 
            dangers posed to the viability of broadcast television 
            stations). See also Leathers v. Medlock, 499 U.S. 439 (1991) 
            (application of state gross receipts tax to cable industry 
            permissible even though other segments of the communications 
            media were exempted).
                    \76\ 512 U.S. 622 (1994).
                    \77\ Id. at 645. ``Deciding whether a particular 
            regulation is content-based or content-neutral is not always 
            a simple task,'' the Court confessed. Id. at 642. Indeed, 
            dissenting Justice O'Connor, joined by Justices Scalia, 
            Ginsburg, and Thomas, viewed the rules as content-based. Id. 
            at 674-82.
                    \78\ 391 U.S. 367, 377 (1968). The Court remanded 
            Turner for further factual findings relevant to the O'Brien 
            test. On remand, the district court upheld the must-carry 
            provisions, and the Supreme Court affirmed, concluding that 
            it ``cannot displace Congress'' judgment respecting content-
            neutral regulations with our own, so long as its policy is 
            grounded on reasonable factual findings supported by 
            evidence that is substantial for a legislative 
            determination. Turner Broadcasting System v. FCC, 520 U.S. 
            180, 224 (1997).
                    \79\ 518 U.S. 727, 755 (1996) (invalidating 
            Sec. 10(b) of the Cable Television Consumer Protection and 
            Competition Act of 1992).
                    \80\ Upholding Sec. 10(a) of the Act, which permits 
            cable operators to prohibit indecent material on leased 
            access channels; and striking down Sec. 10(c), which permits 
            a cable operator to prevent transmission of ``sexually 
            explicit'' programming on public access channels. In 
            upholding Sec. 10(a), Justice Breyer's plurality opinion 
            cited FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and 
            noted that cable television ``is as `accessible to children' 
            as over-the-air broadcasting, if not more so.'' 518 U.S. at 
            744.
                    \81\ This section of Justice Breyer's opinion was 
            joined by Justices Stevens, O'Connor, and Souter. 518 U.S. 
            at 749.
                    \82\ Justice Kennedy, joined by Justice Ginsburg, 
            advocated this approach. 518 U. S. at 791, and took the 
            plurality to task for its ``evasion of any clear legal 
            standard.'' Id. at 784.
                    \83\ Justice Thomas, joined by Chief Justice 
            Rehnquist and Justice Scalia, advocated this approach.
---------------------------------------------------------------------------
Government Restraint of Content of Expression
--Group Libel, Hate Speech
[P. 1136, add to n.111:]
                On the other hand, the First Amendment does permit 
            enhancement of a criminal penalty based on the defendant's 
            motive in selecting a victim of a particular race. Wisconsin 
            v. Mitchell, 508 U.S. 476 (1993). The law has long 
            recognized motive as a permissible element in sentencing, 
            the Court noted. Id. at 485. The Court distinguished R.A.V. 
            as involving a limitation on ``speech'' rather than conduct, 
            and because the state might permissibly conclude that bias-
            inspired crimes inflict greater societal harm than do non-
            bias inspired crimes (e.g., they are more likely to provoke 
            retaliatory crimes). Id. at 487-88. See generally Laurence 
            H. Tribe, The Mystery of Motive, Private and Public: Some 
            Notes Inspired by the Problems of Hate Crime and Animal 
            Sacrifice, 1993 Sup. Ct. Rev. 1.
--Obscenity
[P. 1152, add to n.14:]
                None of these strictures applies, however, to 
            forfeitures imposed as part of a criminal penalty. Alexander 
            v. United States, 509 U.S. 544 (1993) (upholding RICO 
            forfeiture of the entire adult entertainment book and film 
            business of an individual convicted of obscenity and 
            racketeering offenses). Justice Kennedy, dissenting in 
            Alexander, objected to the ``forfeiture of expressive 
            material that had not been adjudged to be obscene.'' Id. at 
            578.
--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, 518 U.S. 727, 755 (1996), 
            the Court, acknowledging that protection of children from 
            sexually explicit programming is a ``compelling'' 
            governmental interest (but refusing to determine whether 
            strict scrutiny applies), nonetheless struck down a 
            requirement that cable operators segregate and block 
            indecent programming on leased access channels. The 
            segregate and block restrictions, which included a 
            requirement that a request for access be in writing, and 
            which allowed for up to 30 days' delay in blocking or 
            unblocking a channel, were not sufficiently protective of 
            adults' speech/viewing interests to be considered either 
            narrowly or reasonably tailored to serve the government's 
            compelling interest in protecting children.
[P. 1161, add to text following n.61:]

                    In Reno v. American Civil Liberties Union, \84\ the 
            Court struck down two provisions of the Communications 
            Decency Act of 1996 (CDA), one of which would have 
            prohibited use of an ``interactive computer service'' to 
            display indecent material ``in a manner available to a 
            person under 18 years of age.'' \85\ This prohibition would, 
            in effect, have banned indecent material from all Internet 
            sites except those accessible by adults only. Although 
            intended ``to deny minors access to potentially harmful 
            speech . . ., [t]hat burden on adult speech,'' the Court 
            wrote, ``is unacceptable if less restrictive alternatives 
            would be at least as effective. . . . [T]he Government may 
            not `reduc[e] the adult population . . . to . . . only what 
            is fit for children.' '' \86\
---------------------------------------------------------------------------

                    \84\ 521 U.S. 844 (1997).
                    \85\ The other provision the Court struck down would 
            have prohibited indecent communications, by telephone, fax, 
            or e-mail, to minors. The Court held it unconstitutional 
            because the Government had not met its ``heavy burden . . . 
            to explain why a less restrictive provision would not be as 
            effective as the CDA.'' 521 U.S. at 879. The Court also 
            hinted, however, that protecting minors from indecent 
            material may not always be a compelling governmental 
            interest, and whether it is may depend upon the age of the 
            minor, the value of the message, and the presence or absence 
            of parental approval. Id. at 878.
                    \86\ 521 U.S. at 875. The Court did not address 
            whether, if less restrictive alternatives would not be as 
            effective, the Government would then be permitted to reduce 
            the adult population to only what is fit for children.
---------------------------------------------------------------------------

                    In Reno, the Court distinguished FCC v. Pacifica 
            Foundation, \87\ in which it had upheld the FCC's 
            restrictions on indecent radio and television broadcasts, 
            because (1) ``[t]he CDA's broad categorical prohibitions are 
            not limited to particular times and are not dependent on any 
            evaluation by an agency familiar with the unique 
            characteristics of the Internet,'' (2) the CDA imposes 
            criminal penalties, and the Court has never decided whether 
            indecent broadcasts ``would justify a criminal 
            prosecution,'' and (3) radio and television, unlike the 
            Internet, have, ``as a matter of history . . . `received the 
            most limited First Amendment protection,' . . . in large 
            part because warnings could not adequately protect the 
            listener from unexpected program content. . . . [the 
            Internet], the risk of encountering indecent material by 
            accident is remote because a series of affirmative steps is 
            required to access specific material.'' \88\
---------------------------------------------------------------------------

                    \87\ 438 U.S. 726 (1978).
                    \88\ 521 U.S. at 867.
---------------------------------------------------------------------------
[P. 1161, start a new paragraph of text with the material 
    that previously followed n.61, and change the opening 
    words of that new paragraph from ``Also, government 
    may'' to ``The government may also'':]
Speech Plus
--The Public Forum
[P. 1167, add to n.98 following cite to Niemotko v. 
    Maryland:]
                Capitol Square Review Bd. v. Pinette, 515 U.S. 753 
            (1995) (denial of permission to Ku Klux Klan, allegedly in 
            order to avoid Establishment Clause violation, to place a 
            cross in plaza on grounds of state capitol); Rosenberger v. 
            University of Virginia, 515 U.S. 819 (1995) (University's 
            subsidy for printing costs of student publications, 
            available for student ``news, information, opinion, 
            entertainment, or academic communications,'' could not be 
            withheld because of the religious content of a student 
            publication); Lamb's Chapel v. Center Moriches School Dist., 
            508 U.S. 384 (1993) (school district rule prohibiting after-
            hours use of school property for showing of a film 
            presenting a religious perspective on child-rearing and 
            family values, but allowing after-hours use for non-
            religious social, civic, and recreational purposes).
[P. 1169, add to n.106:]
                Candidate debates on public television are an example of 
            this third type of public forum: the ``nonpublic forum.'' 
            Arkansas Educational Television Comm'n v. Forbes, 118 S. Ct. 
            1633, 1643 (1998). ``Although public broadcasting as a 
            general matter does not lend itself to scrutiny under the 
            forum doctrine [i.e., public broadcasters ordinarily are 
            entitled to the editorial discretion to engage in viewpoint 
            discrimination], candidate debates present the narrow 
            exception to this rule.'' Id. at 1640. A public broadcaster, 
            therefore, may not engage in viewpoint discrimination in 
            granting or denying access to candidates. Under the third 
            type of forum analysis, however, it may restrict candidate 
            access for ``a reasonable, viewpoint-neutral'' reason, such 
            as a candidate's ``objective lack of support.'' Id. at 1644.
--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, \89\ the Court refined principles 
            governing issuance of ``content-neutral'' injunctions that 
            restrict expressive activity. \90\ 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.'' \91\ 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.'' \92\ 
            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. \93\
---------------------------------------------------------------------------

                    \89\ 512 U.S. 753 (1994).
                    \90\ 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 762.
                    \91\ Id. at 765.
                    \92\ Id.
                    \93\ Referring to Frisby v. Schultz, 487 U.S. 474 
            (1988).
---------------------------------------------------------------------------

                    In Schenck v. Pro-Choice Network of Western New 
            York, \94\ the Court applied Madsen to another injunction 
            that placed restrictions on demonstrating outside an 
            abortion clinic. The Court upheld the portion of the 
            injunction that banned ``demonstrating within fifteen feet 
            from either side or edge of, or in front of, doorways or 
            doorway entrances, parking lot entrances, driveways and 
            driveway entrances of such facilities''--what the Court 
            called ``fixed buffer zones.'' \95\ It struck down a 
            prohibition against demonstrating ``within fifteen feet of 
            any person or vehicles seeking access to or leaving such 
            facilities''--what it called ``floating buffer zones.'' \96\ 
            The Court cited ``public safety and order'' \97\ in 
            upholding the fixed buffer zones, but it found that the 
            floating buffer zones ``burden more speech than is necessary 
            to serve the relevant governmental interests'' \98\ because 
            they make it ``quite difficult for a protester who wishes to 
            engage in peaceful expressive activity to know how to remain 
            in compliance with the injunction.'' \99\ The Court also 
            upheld a ``provision, specifying that once sidewalk 
            counselors who had entered the buffer zones were required to 
            `cease and desist' their counseling, they had to retreat 15 
            feet from the people they had been counseling and had to 
            remain outside the boundaries of the buffer zones.'' \100\
---------------------------------------------------------------------------

                    \94\ 519 U.S. 357 (1997).
                    \95\ Id. at 366 n.3.
                    \96\ Id.
                    \97\ Id. at 376.
                    \98\ Id. at 377.
                    \99\ Id. at 378.
                    \100\ Id. at 367.
---------------------------------------------------------------------------

                    Different types of issues were presented by Hurley 
            v. Irish-American Gay Group, \101\ 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.'' \102\
---------------------------------------------------------------------------

                    \101\ 515 U.S. 557 (1995).
                    \102\ Id. at 573.
---------------------------------------------------------------------------
--Leafleting, Handbilling, and the Like
[P. 1181, add to text after n.168:]

                    Talley's anonymity rationale was strengthened in 
            McIntyre v. Ohio Elections Comm'n, \103\ 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.
---------------------------------------------------------------------------

                    \103\ 514 U.S. 334 (1995).
---------------------------------------------------------------------------
[P. 1181, substitute for first full paragraph on page:]

                    The handbilling cases were distinguished in City 
            Council v. Taxpayers for Vincent, \104\ in which the Court 
            held that a city may prohibit altogether the use of utility 
            poles for posting of signs. While a city's concern over 
            visual blight could be addressed by an anti-littering 
            ordinance that did not restrict the expressive activity of 
            distributing handbills, in the case of utility pole signs 
            ``it is the medium of expression itself'' that creates the 
            visual blight. Hence, the city's prohibition, unlike a 
            prohibition on distributing handbills, was narrowly tailored 
            to curtail no more speech than necessary to accomplish the 
            city's legitimate purpose. \105\ Ten years later, however, 
            the Court unanimously invalidated a town's broad ban on 
            residential signs that permitted only residential 
            identification signs, ``for sale'' signs, and signs warning 
            of safety hazards. \106\ Prohibiting homeowners from 
            displaying political, religious, or personal messages on 
            their own property ``almost completely foreclosed a 
            venerable means of communication that is both unique and 
            important,'' and that is ``an unusually cheap and convenient 
            form of communication'' without viable alternatives for many 
            residents. \107\ 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 1930's 
            and 1940's. 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. \108\
---------------------------------------------------------------------------

                    \104\ 466 U.S. 789 (1984).
                    \105\ 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.
                    \106\ City of Ladue v. Gilleo, 512 U.S. 43 (1994).
                    \107\ Id. at 54, 57.
                    \108\ Id. at 54. The city's legitimate interest in 
            reducing visual clutter could be addressed by ``more 
            temperate'' measures, the Court suggested. Id. at 58.
                            SECOND AMENDMENT

[P. 1193, add to n.1:]
                Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of 
            an Anglo-American Right (1994); Glenn Harlan Reynolds, A 
            Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 
            (1995); William Van Alystyne, The Second Amendment and the 
            Personal Right to Bear Arms, 43 Duke L.J. 1236 (1994).
[P. 1194, add to n.7:]
                See also Hickman v. Block, 81 F.3d 98 (9th Cir.) 
            (plaintiff lacked standing to challenge denial of permit to 
            carry concealed weapon, because Second Amendment is a right 
            held by states, not by private citizens), cert. denied 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''); United States v. Wright, 117 F.3d 
            1265 (11th Cir.), cert. denied 118 S. Ct. 584 (1997) (member 
            of Georgia unorganized militia unable to establish that his 
            possession of machineguns and pipe bombs bore any connection 
            to the preservation or efficiency of a well regulated 
            militia).
[P. 1194, add to text at end of section:]

                    Pointing out that interest in the ``character of the 
            Second Amendment right has recently burgeoned,'' Justice 
            Thomas, concurring in the Court's invalidation (on other 
            grounds) of the Brady Handgun Violence Prevention Act, 
            questioned whether the Second Amendment bars federal 
            regulation of gun sales, and suggested that the Court might 
            determine ``at some future date . . . whether Justice Story 
            was correct . . . that the right to bear arms `has justly 
            been considered, as the palladium of the liberties of a 
            republic.' '' \109\
---------------------------------------------------------------------------

                    \109\ Printz v. United States, 521 U.S. 898, 937-39 
            (1997) (quoting 3 Commentaries Sec. 1890, p. 746 (1833)). 
            Justice Scalia, in extra-judicial writing, has sided with 
            the individual rights interpretation of the Amendment. See 
            Antonin Scalia, A Matter of Interpretation, Federal Courts 
            and the Law, 136-37 n.13 (A. Gutmann, ed., 1997) (responding 
            to Professor Tribe's critique of ``my interpretation of the 
            Second Amendment as a guarantee that the federal government 
            will not interfere with the individual's right to bear arms 
            for self-defense'').
                            FOURTH AMENDMENT

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, 517 U.S. 690 (1996) (determinations of 
            reasonable suspicion to stop and probable cause to search 
            without a warrant should be subjected to de novo appellate 
            review).
--Execution of Warrants
[P. 1226, delete first sentence of section and substitute 
    the following:]

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

                    \2\ United States v. Ramirez, 118 S. Ct. 992, 996 
            (1998).
                    \3\ Rule 41(c), Federal Rules of Criminal Procedure, 
            provides, inter alia, that the warrant shall be served in 
            the daytime, unless the magistrate ``for reasonable cause 
            shown'' directs in the warrant that it be served at some 
            other time. See Jones v. United States, 357 U.S. 493, 498-
            500 (1958); Gooding v. United States, 416 U.S. 430 (1974). A 
            separate statutory rule applies to narcotics cases. 21 
            U.S.C. Sec. 879(a).
---------------------------------------------------------------------------
[P. 1227, add to text following sentence containing n.158:]

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

                    \4\ 514 U.S. 927 (1995).
                    \5\ 520 U.S. 385, 394 (1997).
                    \6\ The fact that officers may have to destroy 
            property in order to conduct a no-knock entry has no bearing 
            on the reasonableness of their decision not to knock and 
            announce. United States v. Ramirez, 118 S. Ct. 992 (1998).
---------------------------------------------------------------------------
[P. 1227, delete sentence containing n.159:]
Valid Searches and Seizures Without Warrants
--Detention Short of Arrest--Stop-and-Frisk
[P. 1230, add to n.12:]
                Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after 
            validly stopping car, officer may order passengers as well 
            as driver out of car; ``the same weighty interest in officer 
            safety is present regardless of whether the occupant of the 
            stopped car is a driver or passenger'').
[P. 1230, add to text following n.12:]

                    If, in the course of a weapons frisk, ``plain 
            touch'' reveals presence of an object that the officer has 
            probable cause to believe is contraband, the officer may 
            seize that object. \7\ 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. \8\
---------------------------------------------------------------------------

                    \7\ Minnesota v. Dickerson, 508 U.S. 366 (1993).
                    \8\ Id. at 375, 378-79. In Dickerson the Court held 
            that seizure of a small plastic container that the officer 
            felt in the suspect's pocket was not justified; the officer 
            should not have continued the search, manipulating the 
            container with his fingers, after determining that no weapon 
            was present.
---------------------------------------------------------------------------
--Vehicular Searches
[P. 1239, add to n.62:]
                An automobile's ``ready mobility [is] an exigency 
            sufficient to excuse failure to obtain a search warrant once 
            probable cause is clear''; there is no need to find the 
            presence of ``unforeseen circumstances'' or other additional 
            exigency. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996).
[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'' \9\ of traffic or safety violation or 
            some other criminal activity. \10\
---------------------------------------------------------------------------

                    \9\ 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.
                    \10\ An officer who observes a traffic violation may 
            stop a vehicle even if his real motivation is to investigate 
            for evidence of other crime. Whren v. United States, 517 
            U.S. 806 (1996). The existence of probable cause to believe 
            that a traffic violation has occurred establishes the 
            constitutional reasonableness of traffic stops regardless of 
            the actual motivation of the officers involved, and 
            regardless of whether it is customary police practice to 
            stop motorists for the violation observed.
---------------------------------------------------------------------------
--Consent Searches
P. 1242, add to n.82:]
                Ohio v. Robinette, 519 U.S. 33 (1996) (officer need not 
            always inform a detained motorist that he is free to go 
            before consent to search auto may be deemed voluntary).
--Drug Testing
[P. 1249, substitute for paragraph beginning after n.128:]

                    Emphasizing the ``special needs'' of the public 
            school context, reflected in the ``custodial and tutelary'' 
            power that schools exercise over students, and also noting 
            schoolchildren's diminished expectation of privacy, the 
            Court in Vernonia School District v. Acton \11\ 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.'' \12\ 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.'' \13\ 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. \14\ 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. 
            \15\
---------------------------------------------------------------------------

                    \11\ 515 U.S. 646 (1995).
                    \12\ Id. at 661.
                    \13\ Id.
                    \14\ Id. at 657.
                    \15\ Id. at 665.
---------------------------------------------------------------------------

                    No ``special needs'' justified Georgia's requirement 
            that candidates for state office certify that they had 
            passed a drug test, the Court ruled in Chandler v. Miller. 
            \16\ Rather, the Court concluded that Georgia's requirement 
            was ``symbolic'' rather than ``special.'' There was nothing 
            in the record to indicate any actual fear or suspicion of 
            drug use by state officials, the required certification was 
            not well designed to detect illegal drug use, and candidates 
            for state office, unlike the customs officers held subject 
            to drug testing in Von Raab, are subject to ``relentless'' 
            public scrutiny.
---------------------------------------------------------------------------

                    \16\ 520 U.S. 305 (1997).
---------------------------------------------------------------------------
Enforcing the Fourth Amendment: The Exclusionary Rule
--Narrowing Application of the Exclusionary Rule
[P. 1267, add to n.211:]
                Similarly, the exclusionary rule does not require 
            suppression of evidence that was seized incident to an 
            arrest that was the result of a clerical error by a court 
            clerk. Arizona v. Evans, 514 U.S. 1 (1995).
[P. 1267, add to text following n.213:]

                    The rule is inapplicable in parole revocation 
            hearings. \17\
---------------------------------------------------------------------------

                    \17\ Pennsylvania Bd. of Probation and Parole v. 
            Scott, 118 S. Ct. 2014 (1998).
---------------------------------------------------------------------------
--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).
                             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 citation to 89 Firearms case and 
    add:]
                Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 
            (1994) (tax on possession of illegal drugs, ``to be 
            collected only after any state or federal fines or 
            forfeitures have been satisfied,'' constitutes punishment 
            for purposes of double jeopardy).
[P. 1283, add to text following n.60:]

                    Ordinarily, however, civil in rem forfeiture 
            proceedings may not be considered punitive for purposes of 
            double jeopardy analysis, \1\ and the same is true of civil 
            commitment following expiration of a prison term. \2\
---------------------------------------------------------------------------

                    \1\ United States v. Ursery, 518 U.S. 267 (1996) 
            (forfeitures, pursuant to 19 U.S.C. Sec. 981 and 21 U.S.C. 
            Sec. 881, of property used in drug and money laundering 
            offenses, are not punitive). The Court in Ursery applied 
            principles that had been set forth in Various Items of 
            Personal Property v. United States, 282 U.S. 577 (1931) 
            (forfeiture of distillery used in defrauding government of 
            tax on spirits); One Lot Emerald Cut Stones v. United 
            States, 409 U.S. 232 (1972) (per curiam) (forfeiture of 
            jewels brought into United States without customs 
            declaration); and United States v. One Assortment of 89 
            Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18 
            U.S.C. Sec. 924(d), of firearms ``used or intended to be 
            used in'' firearms offenses). A two-part inquiry is 
            followed. First, the Court inquires whether Congress 
            intended the forfeiture proceeding to be civil or criminal. 
            Then, if Congress intended that the proceeding be civil, the 
            court determines whether there is nonetheless the ``clearest 
            proof'' that the sanction is ``so punitive'' as to transform 
            it into a criminal penalty. 89 Firearms, supra, 465 U.S. at 
            366.
                    \2\ Kansas v. Hendricks, 521 U.S. 346, 369-70 (1997) 
            (commitment under State's Sexually Violent Predator Act).
---------------------------------------------------------------------------
Reprosecution Following Acquittal
--Acquittal by Jury
[P. 1290, add note to end of first sentence in section:]
                What constitutes a jury acquittal may occasionally be 
            uncertain. In Schiro v. Farley, 510 U.S. 222 (1994), the 
            Court ruled that a jury's action in leaving the verdict 
            sheet blank on all but one count did not amount to an 
            acquittal on those counts, and that consequently conviction 
            on the remaining count, alleged to be duplicative of one of 
            the blank counts, could not constitute double jeopardy. In 
            any event, the Court added, no successive prosecution 
            violative of double jeopardy could result from an initial 
            sentencing proceeding in the course of an initial 
            prosecution.
Reprosecution Following Conviction
--Sentence Increases
[P. 1296, add to n.131:]
                In Monge v. California, 118 S. Ct. 2246 (1998), the 
            Court refused to extend the ``narrow'' Bullington exception 
            outside the area of capital punishment.
[P. 1297, add new paragraph to text following n.133:]

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

                    \3\ United States v. Watts, 519 U.S. 148, 154 (1997) 
            (relying on Witte v. United States, 515 U.S. 389 (1995), and 
            holding that a sentencing court may consider earlier conduct 
            of which the defendant was acquitted, so long as that 
            conduct is proved by a preponderance of the evidence). See 
            also Almendarez-Torres v. United States, 118 S. Ct. 1219 
            (1998) (Congress' decision to treat recidivism as a 
            sentencing factor does not violate due process); Monge v. 
            California, 118 S. Ct. 2246 (1998) (retrial is permissible 
            following appellate holding of failure of proof relating to 
            sentence enhancement). Justice Scalia, whose dissent in 
            Almendarez-Torres argued that there was constitutional doubt 
            over whether recidivism factors that increase a maximum 
            sentence must be treated as a separate offense for double 
            jeopardy purposes (118 S. Ct. at 1233), answered that 
            question affirmatively in his dissent in Monge. 118 S. Ct. 
            at 2255.
---------------------------------------------------------------------------
``For the Same Offence''
--Legislative Discretion as to Multiple Sentences
[P. 1299, add to n.142:]
                But cf. Rutledge v. United States, 517 U.S. 292 (1996) 
            (21 U.S.C. Sec. 846, prohibiting conspiracy to commit drug 
            offenses, does not require proof of any fact that is not 
            also a part of the continuing criminal enterprise offense 
            under 21 U.S.C. Sec. 848, so there are not two separate 
            offenses).
--Successive Prosecutions for the Same Offense
[P. 1300, substitute for the two sentences immediately 
    following n.150:]

                    In 1990, the Court modified the Brown approach, 
            stating that the appropriate focus is on same conduct rather 
            than same evidence. \4\ That interpretation held sway only 
            three years, however, before being repudiated as ``wrong in 
            principle [and] unstable in application.'' \5\
---------------------------------------------------------------------------

                    \4\ Grady v. Corbin, 495 U.S. 508 (1990) (holding 
            that the state could not prosecute a traffic offender for 
            negligent homicide because it would attempt to prove conduct 
            for which the defendant had already been prosecuted--driving 
            while intoxicated and failure to keep to the right of the 
            median). A subsequent prosecution is barred, the Court 
            explained, if the government, to establish an essential 
            element of an offense, will prove conduct that constitutes 
            an offense for which the defendant has already been 
            prosecuted. Id. at 521.
                    \5\ United States v. Dixon, 509 U.S. 688, 709 (1993) 
            (applying Blockburger test to determine whether prosecution 
            for a crime, following conviction for criminal contempt for 
            violation of a court order prohibiting that crime, 
            constitutes double jeopardy).
---------------------------------------------------------------------------
[P. 1301, add to n.154:]
                The fact that Felix constituted a ``large exception'' to 
            Grady was one of the reasons the Court cited in overruling 
            Grady. United States v. Dixon, 509 U.S. 688, 709-10 (1993).
[P. 1301, add to text following n.154:]

                    For double jeopardy purposes, a defendant is 
            ``punished . . . only for the offense of which [he] is 
            convicted''; a later prosecution or later punishment is not 
            barred simply because the underlying criminal activity has 
            been considered at sentencing for a different offense. \6\ 
            Similarly, recidivism-based sentence enhancement does not 
            constitute multiple punishment for the ``same'' prior 
            offense, but instead is a stiffened penalty for the later 
            crime. \7\
---------------------------------------------------------------------------

                    \6\ Witte v. United States, 515 U.S. 389 (1995) 
            (consideration of defendant's alleged cocaine dealings in 
            determining sentence for marijuana offenses does not bar 
            subsequent prosecution on cocaine charges).
                    \7\ Monge v. California, 118 S. Ct. 2246, 2250 
            (1998).
---------------------------------------------------------------------------
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).
[P. 1311, add to text at end of section:]

                    There is no ``cooperative internationalism'' that 
            parallels the cooperative federalism and cooperative 
            prosecution on which application against states is premised, 
            and consequently concern with foreign prosecution is beyond 
            the scope of the Self-Incrimination Clause. \8\
---------------------------------------------------------------------------

                    \8\ United States v. Balsys, 118 S. Ct. 2218 (1998).
---------------------------------------------------------------------------
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,\9\ such a course was squarely rejected in 1993. The 
            Stone v. Powell \10\ rule, precluding federal habeas corpus 
            review of a state prisoner's claim that his conviction rests 
            on evidence obtained through an unconstitutional search or 
            seizure, does not extend to preclude federal habeas review 
            of a state prisoner's claim that his conviction had been 
            obtained in violation of Miranda safeguards, the Court ruled 
            in Withrow v. Williams. \11\ The Miranda rule differs from 
            the Mapp v. Ohio \12\ 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. \13\ 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. \14\
---------------------------------------------------------------------------

                    \9\ 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.
                    \10\ 428 U.S. 465 (1976).
                    \11\ 507 U.S. 680 (1993).
                    \12\ 367 U.S. 643 (1961).
                    \13\ 507 U.S. at 691-92.
                    \14\ Id. at 693.
---------------------------------------------------------------------------
[P. 1334, add to text following n.324:]

                    Whether a person is ``in custody'' is an objective 
            test assessed in terms of how a reasonable person in the 
            suspect's shoes would perceive his or her freedom to leave; 
            a police officer's subjective and undisclosed view that a 
            person being interrogated is a suspect is not relevant for 
            Miranda purposes. \15\
---------------------------------------------------------------------------

                    \15\ Stansbury v. California, 511 U.S. 318 (1994).
---------------------------------------------------------------------------
[P. 1338, add to text following n.344:]

                    After a suspect has knowingly and voluntarily waived 
            his Miranda rights, police officers may continue questioning 
            until and unless the suspect clearly requests an attorney. 
            \16\
---------------------------------------------------------------------------

                    \16\ Davis v. United States, 512 U.S. 452 (1994) 
            (suspect's statement that ``maybe I should talk to a 
            lawyer,'' uttered after Miranda waiver and after an hour and 
            a half of questioning, did not constitute such a clear 
            request for an attorney when, in response to a direct 
            follow-up question, he said ``no, I don't want a lawyer'').
---------------------------------------------------------------------------
The Operation of the Exclusionary Rule
--Supreme Court Review
[P. 1341, add to text at end of section:]

                    In Withrow v. Williams, \17\ the Court held that the 
            rule of Stone v. Powell, \18\ 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.
---------------------------------------------------------------------------

                    \17\ 507 U.S. 680 (1993).
                    \18\ 428 U.S. 465 (1976). See main text, pp. 1265-
            66.
---------------------------------------------------------------------------
DUE PROCESS
Substantive Due Process
--Discrimination
[P. 1358, add to n.75 following Richardson v. Belcher 
    citation:]
                FCC v. Beach Communications, 508 U.S. 307 (1993) 
            (exemption from cable TV regulation of facilities that serve 
            only dwelling units under common ownership).
--Retroactive Taxes
[P. 1364, substitute for last paragraph in section:]

                    Although the Court during the 1920s struck down gift 
            taxes imposed retroactively upon gifts that were made and 
            completely vested before the enactment of the taxing 
            statute, \19\ those decisions have recently been 
            distinguished, and their precedential value limited. \20\ 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.' '' \21\ 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.'' \22\
---------------------------------------------------------------------------

                    \19\ 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).
                    \20\ Untermyer was distinguished in United States v. 
            Hemme, 476 U.S. 558, 568 (1986), upholding retroactive 
            application of unified estate and gift taxation to a 
            taxpayer as to whom the overall impact was minimal and not 
            oppressive. All three cases were distinguished in United 
            States v. Carlton, 512 U.S. 26, 30 (1994), as having been 
            ``decided during an era characterized by exacting review of 
            economic legislation under an approach that `has long since 
            been discarded.''' The Court noted further that Untermyer 
            and Blodgett had been limited to situations involving 
            creation of a wholly new tax, and that Nichols had involved 
            a retroactivity period of 12 years. Id.
                    \21\ 512 U.S. 26, 30 (1994) (quoting Usery v. Turner 
            Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976)). These 
            principles apply to estate and gift taxes as well as to 
            income taxes, the Court added. 512 U.S. at 34.
                    \22\ 512 U.S. at 33.
---------------------------------------------------------------------------
--Deprivation of Property: Retroactive Legislation
[P. 1365, add to n.130:]
                Concrete Pipe & Products v. Construction Laborers 
            Pension Trust, 508 U.S. 602, 636-41 (1993) (imposition of 
            multiemployer pension plan withdrawal liability on an 
            employer is not irrational, even though none of its 
            employees had earned vested benefits by the time of 
            withdrawal). In Eastern Enterprises v. Apfel, 118 S. Ct. 
            2131 (1998), the challenge was to a statutory requirement 
            that companies formerly engaged in mining pay miner retiree 
            health benefits, as applied to a company that had placed its 
            mining operations in a wholly owned subsidiary three decades 
            earlier, before labor agreements included an express promise 
            of lifetime benefits. In a fractured opinion, the justices 
            ruled 5-4 that the scheme's severe retroactive effect 
            offended the Constitution, though differing on the governing 
            clause. Four of the majority justices based the judgment 
            solely on takings law, while opining that ``there is a 
            question'' whether the statute violated due process as well. 
            The remaining majority justice, and the four dissenters, 
            viewed substantive due process as the sole appropriate 
            framework for resolving the case, but disagreed on whether a 
            violation had occurred.
[P. 1366, add to n.138:]
                The Court has addressed similar issues under breach of 
            contract theory. United States v. Winstar Corp., 518 U.S. 
            839 (1996).
NATIONAL EMINENT DOMAIN POWER
When Property Is Taken
--Regulatory Takings
[P. 1387, add to n.277 after initial citation:]
                Accord, Concrete Pipe & Products v. Construction 
            Laborers Pension Trust, 508 U.S. 602, 645-46 (1993).
[P. 1387, add to text at end of sentence containing n.277:]

                    However, where a statute imposes severe and 
            ``substantially disproportionate'' retroactive liability 
            based on conduct several decades earlier, on parties that 
            could not have anticipated the liability, a taking (or 
            violation of due process) may occur. On this rationale, the 
            Court in Eastern Enterprises v. Apfel \23\ struck down the 
            Coal Miner Retiree Health Benefit Act's requirement that 
            companies formerly engaged in mining pay miner retiree 
            health benefits, as applied to a company that spun off its 
            mining operation in 1965 before collective bargaining 
            agreements included an express promise of lifetime benefits.
---------------------------------------------------------------------------

                    \23\ 118 S. Ct. 2131 (1998). The split doctrinal 
            basis of Eastern Enterprises undercuts its precedent value, 
            and that of Connolly and Concrete Pipe, for takings law. A 
            majority of the justices (one supporting the judgment and 
            four dissenters) found substantive due process, not takings 
            law, to provide the analytical framework where, as in 
            Eastern Enterprises, the gravamen of the complaint is the 
            unfairness and irrationality of the statute, rather than its 
            economic impact.
---------------------------------------------------------------------------
[P. 1391, delete remainder of paragraph after n.299 and 
    substitute the following:]

                    ``If [the government] wants an easement across the 
            Nollans' property, it must pay for it.'' \24\ 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. \25\ Seven years 
            later, however, the Court announced in Dolan v. City of 
            Tigard \26\ that exaction conditions attached to development 
            permits must be related to the impact of the proposed 
            development not only in nature but also in degree. 
            Government must establish a ``rough proportionality'' 
            between permit conditions and the developmental impacts at 
            which they are aimed. \27\ The Court ruled in Dolan that the 
            city's conditioning of a building permit for expansion of a 
            hardware store on the store owner's dedication of a portion 
            of her land for a floodplain/recreational easement and for 
            an adjacent pedestrian/bicycle pathway amounted to a taking. 
            The requisite nexus existed between the city's interest in 
            flood control and imposition of the floodplain easement, and 
            between the interest in minimizing traffic congestion and 
            the required bike path dedication, but the Court found that 
            the city had not established a rough proportionality of 
            degree. The floodplain/recreational easement not only 
            prevented the property owner from building in the 
            floodplain--a legitimate constraint--but also deprived her 
            of the right to exclude others. And the city had not 
            adequately demonstrated that the bike path was necessitated 
            by the additional vehicle and bicycle trips that would be 
            generated by the applicant's development. \28\
---------------------------------------------------------------------------

                    \24\ 483 U.S. at 842.
                    \25\ 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.
                    \26\ 512 U.S. 374 (1994).
                    \27\ Id. at 391. Justice Stevens' dissent criticized 
            the Court's ``abandon[ment of] the traditional presumption 
            of constitutionality and imposi[tion of] a novel burden of 
            proof on [the] city.'' Id. at 405. The Court responded by 
            distinguishing between challenges to generally applicable 
            zoning regulations, where the burden appropriately rests on 
            the challenging party, and imposition of property exactions 
            through adjudicative proceedings, where ``the burden 
            properly rests on the city.'' Id. at 391 n.8. As for the 
            standard of proof, the Court looked to state law and 
            rejected the two extremes--a generalized statement of 
            connection deemed ``too lax'' to protect the Fifth Amendment 
            right to just compensation, and a ``specific and uniquely 
            attributable'' test deemed too exacting. Instead, the Court 
            chose an ``intermediate position'' requiring a showing of 
            ``reasonable relationship,'' but recharacterized it as 
            ``rough proportionality'' in order to avoid confusion with 
            ``rational basis.'' Id. at 391.
                    \28\ The city had quantified the traffic increases 
            that could be expected from the development, but had merely 
            speculated that construction of the bike path ``could 
            offset'' some of that increase. While ``[n]o precise 
            mathematical calculation is required,'' the Court concluded, 
            ``the city must make some effort to quantify its findings in 
            support of the dedication.'' Id. at 395-96.
---------------------------------------------------------------------------
[P. 1393, add to text following n.306:]

                    Outside the land-use context, however, the Court has 
            now recognized a limited number of situations where 
            invalidation, rather than compensation, remains the 
            appropriate takings remedy. \29\
---------------------------------------------------------------------------

                    \29\ Eastern Enterprises v. Apfel, 118 S. Ct. 2131 
            (1998) (statute imposing generalized monetary liability); 
            Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory 
            requirement that small fractional interests in allotted 
            Indian lands escheat to tribe, rather than pass on to 
            heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment 
            version of escheat statute).
---------------------------------------------------------------------------
[P. 1394, change n.312 to read:]
                Hodel v. Irving, 481 U.S. 704 (1987) (complete 
            abrogation of the right to pass on to heirs fractionated 
            interests in lands constitutes a taking); Babbitt v. Youpee, 
            519 U.S. 234 (1997) (same result based on ``severe'' 
            restriction of the right).
[P. 1394, add to text after n.312:]

                    Nor must property have realizable net value to fall 
            under the Takings Clause. \30\
---------------------------------------------------------------------------

                    \30\ Phillips v. Washington Legal Foundation, 118 S. 
            Ct. 1925 (1998) (interest on client funds in state Interest 
            on Lawyers Trust Account program is property of client 
            within meaning of Takings Clause, though funds could not 
            generate net interest in absence of program).
---------------------------------------------------------------------------
[P. 1395, delete remainder of paragraph after n.314 and 
    substitute the following new paragraph:]

                    Failure to incur such administrative (and judicial) 
            delays can result in dismissal of an as-applied taking claim 
            based on ripeness doctrine, an area of takings law that the 
            Court has developed extensively since Penn Central. In the 
            leading decision of Williamson County Regional Planning 
            Comm'n v. Hamilton Bank, \31\ the Court announced the 
            canonical two-part ripeness test for takings actions brought 
            in federal court against state and local agencies. First, 
            for an as-applied challenge, the property owner must obtain 
            from the regulating agency a ``final, definitive position'' 
            regarding how it will apply its regulation to the owner's 
            land. Second, the owner must exhaust any possibilities for 
            obtaining compensation from state fora before coming to 
            federal court. Thus, the claim in Williamson County was 
            found unripe because the plaintiff had failed to seek a 
            variance (first prong of test), and had not sought 
            compensation from the state courts in question even though 
            they recognized inverse condemnation claims (second prong). 
            Similarly, in MacDonald, Sommer & Frates v. County of Yolo, 
            \32\ a final decision was found lacking where the landowner 
            had been denied approval for one subdivision plan calling 
            for intense development, but that denial had not foreclosed 
            the possibility that a scaled-down (though still economic) 
            version would be approved. \33\ In a somewhat different 
            context, a taking challenge to a municipal rent control 
            ordinance was considered ``premature'' in the absence of 
            evidence that a tenant hardship provision had ever been 
            applied to reduce what would otherwise be considered a 
            reasonable rent increase. \34\ Facial challenges dispense 
            with the Williamson County final decision prerequisite, 
            though at great risk to the plaintiff in that without 
            pursuing administrative remedies, a claimant often lacks 
            evidence that a statute has the requisite economic impact on 
            his or her property. \35\
---------------------------------------------------------------------------

                    \31\ 473 U.S. 172 (1985).
                    \32\ 477 U.S. 340 (1986).
                    \33\ Most recently, the Court found the final-
            decision prerequisite met in Suitum v. Tahoe Regional 
            Planning Agency, 520 U.S. 725 (1997). That threshold 
            showing, said the Court, did not demand that a landowner 
            first apply for approval of her sale of transferrable 
            development rights (TDRs) where the parties agreed on the 
            TDRs to which she was entitled and their value was simply an 
            issue of fact. Suitum is also significant for reaffirming 
            the two-prong Williamson County ripeness test, despite its 
            rigorous application by lower federal courts to avoid 
            reaching the merits in the majority of takings cases.
                    \34\ Pennell v. City of San Jose, 485 U.S. 1 (1988).
                    \35\ See, e.g., Hodel v. Virginia Surface Mining & 
            Reclamation Ass'n, 452 U.S. 264, 295-97 (1981) (facial 
            challenge to surface mining law rejected); United States v. 
            Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere 
            permit requirement does not itself take property); Keystone 
            Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493-502 
            (1987) (facial challenge to anti-subsidence mining law 
            rejected).
                             SIXTH AMENDMENT

RIGHT TO TRIAL BY IMPARTIAL JURY
Jury Trial
[P. 1408, change heading to:]
--The Attributes and Function of the Jury
[P. 1410, add to text following n.64:]

                    Certain functions of the jury are likely to remain 
            consistent between the federal and state court systems. For 
            instance, the requirement that a jury find a defendant 
            guilty beyond a reasonable doubt, which had already been 
            established under the Due Process Clause, \1\ has been held 
            to be a standard mandated by the Sixth Amendment. \2\ The 
            Court 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, 515 U.S. 506 (1995).
                    \4\ Gaudin, 515 U.S. at 523.
---------------------------------------------------------------------------
--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, 518 U.S. 322 (1996).
---------------------------------------------------------------------------
[P. 1411, add to n.73:]
                The distinction between criminal and civil contempt may 
            be somewhat more elusive. International Union, UMW v. 
            Bagwell, 512 U.S. 821 (1994) (fines levied on the union were 
            criminal in nature where the conduct did not occur in the 
            court's presence, the court's injunction required compliance 
            with an entire code of conduct, and the fines assessed were 
            not compensatory).
PLACE OF TRIAL--JURY OF VICINAGE
[P. 1419, add to text following n.128:]

                    Thus, a defendant cannot be tried in Missouri for 
            money-laundering if the charged offenses occurred in Florida 
            and there was no evidence that the defendant had been 
            involved with the receipt or transportation of the proceeds 
            from Missouri. \6\
---------------------------------------------------------------------------

                    \6\ United States v. Cabrales, 118 S. Ct. 1772 
            (1998).
---------------------------------------------------------------------------
CONFRONTATION
[P. 1423, add to n.158:]
                Bruton was held applicable, however, where a blank space 
            or the word ``deleted'' is substituted for the defendant's 
            name in a co-defendant's confession, making such confession 
            incriminating of the defendant on its face. Gray v. 
            Maryland, 118 S. Ct. 1151 (1998).
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, \7\ 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. \8\
---------------------------------------------------------------------------

                    \7\ 506 U.S. 364 (1993).
                    \8\ 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).
                            SEVENTH AMENDMENT

TRIAL BY JURY IN CIVIL CASES
Application of the Amendment
--Cases ``at Common Law''
[P. 1455, add to n.29:]
                Feltner v. Columbia Pictures Television, 118 S. Ct. 1279 
            (1998) (jury trial required for copyright action with close 
            analog at common law, even though the relief sought is not 
            actual damages but statutory damages based on what is 
            ``just).''
[P.1455, add to text following n.30:]

                    Where there is no direct historical antecedent 
            dating to the adoption of the amendment, the court may also 
            consider whether existing precedent and the sound 
            administration of justice favor resolution by judges or 
            juries. \1\
---------------------------------------------------------------------------

                    \1\ Markman v. Westview Instruments, Inc., 517 U.S. 
            370 (1996) (interpretation and construction of terms 
            underlying patent claims may be reserved entirely for the 
            court).
---------------------------------------------------------------------------
--Procedures Limiting Jury's Role
[P.1461, add to n.59:]
                A federal appellate court may also review a district 
            court's denial of a motion to set aside an award as 
            excessive under an abuse of discretion standard. Gasperini 
            v. Center for Humanities, Inc., 518 U.S. 415 (1996) (New 
            York State law which requires a review of jury awards to 
            determine if they ``deviate materially from reasonable 
            compensation'' may be adopted by federal district, but not 
            appellate, court exercising diversity jurisdiction).
--Directed Verdicts
[P. 1461, add new note at end of sentence beginning after 
    n.61:]
                But see Hetzel v. Prince William County, 118 S. Ct. 1210 
            (1998) (when an appeals court affirms liability but orders 
            level of damages to be reconsidered, the plaintiff has a 
            Seventh Amendment right either to accept the reduced award 
            or to have a new trial).
                            EIGHTH AMENDMENT

EXCESSIVE FINES
[P. 1471, add to text following n.35:]

                    The Court has held, however, that the excessive 
            fines clause can be applied in civil forfeiture cases. \1\
---------------------------------------------------------------------------

                    \1\ In Austin v. United States, 509 U.S. 602 (1993), 
            the Court noted that the application of the excessive fines 
            clause to civil forfeiture did not depend on whether it was 
            a civil or criminal procedure, but rather on whether the 
            forfeiture could be seen as punishment. The Court was 
            apparently willing to consider any number of factors in 
            making this evaluation; civil forfeiture was found to be at 
            least partially intended as punishment, and thus limited by 
            the clause, based on its common law roots, its focus on 
            culpability, and various indications in the legislative 
            histories of its more recent incarnations.
---------------------------------------------------------------------------
[P. 1471, delete paragraph after n.35, and add the 
    following:]

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

                    \2\ 118 S. Ct. 2028 (1998).
                    \3\ The Court held that a criminal forfeiture, which 
            is imposed at the time of sentencing, should be considered a 
            fine, because it serves as a punishment for the underlying 
            crime. 118 S.Ct. at 2033. The Court distinguished this from 
            civil forfeiture, which, as an in rem proceeding against 
            property, would generally not function as a punishment of 
            the criminal defendant. 118 S.Ct. at 2036.
                    \4\ In Bajakajian, the lower court found that the 
            currency in question was not derived from illegal 
            activities, and that the defendant, who had grown up a 
            member of the Armenian minority in Syria, had failed to 
            report the currency out of distrust of the government. 118 
            S.Ct. at 2032. The Court found it relevant that the 
            defendant did not appear to be among the class of persons 
            for whom the statute was designed, i.e. a money launderer or 
            tax evader, and that the harm to the government from the 
            defendant's failure to report the currency was minimal. 118 
            S.Ct. at 2038-39.
---------------------------------------------------------------------------
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, 513 U.S. 504 
            (1995) (Eighth Amendment not violated where judge is only 
            required to ``consider'' a capital jury's sentencing 
            recommendation).
[P. 1480, add to n.76:]
                But see Tuilaepa v. California, 512 U.S. 967 (1994) 
            (holding that permitting capital juries to consider the 
            circumstances of the crime, the defendant's prior criminal 
            activity, and the age of the defendant, without further 
            guidance, is not unconstitutionally vague).
[P. 1480, add to n.77:]
                Arave v. Creech, 507 U.S. 463 (1993) (consistent 
            application of narrowing construction of phrase ``exhibited 
            utter disregard for human life'' to require that the 
            defendant be a ``cold-blooded, pitiless slayer'' cures 
            vagueness).
[P. 1480, add to n.81 after citation to Spaziano v. 
    Florida:]
                See Hopkins v. Reeves, 118 S. Ct. 1895 (1998) (defendant 
            charged with felony murder did not have right to instruction 
            as to second degree murder or manslaughter, where Nebraska 
            traditionally did not consider these lesser included 
            offenses).
[P. 1481, add to n.82:]
                Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of 
            death penalty after introduction of evidence that defendant 
            had been sentenced to death previously did not diminish the 
            jury's sense of responsibility so as to violate the Eighth 
            Amendment).
[P. 1483, add new note at end of second sentence of 
    paragraph beginning after n.93:]
                See, e.g., Johnson v. Texas, 509 U.S. 350 (1993) 
            (consideration of youth as a mitigating factor may be 
            limited to jury estimation of probability that defendant 
            would commit future acts of violence).
[P. 1483, add new 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.98]
                A court is not required give a jury instruction 
            expressly directing the jury to consider mitigating 
            circumstance, as long as the instruction actually given 
            affords the jury the discretion to take such evidence into 
            consideration. Buchanan v. Angelone, 118 S. Ct. 757 (1998).
[P. 1484, add to n.103:]
                Thus, where psychiatric testimony was introduced 
            regarding an invalid statutory aggravating circumstance, and 
            where the defendant was not provided the assistance of an 
            independent psychiatrist in order to develop rebuttal 
            testimony, the lack of rebuttal testimony might have 
            affected how the jury evaluated another aggravating factor. 
            Consequently, the reviewing court erred in reinstating a 
            death sentence based on this other valid aggravating factor. 
            Tuggle v. Netherland, 516 U.S. 10 (1995) (per curiam).
[P. 1487, add to text following n.116:]

                    In addition, the Court has held that, absent an 
            independent constitutional violation, habeas corpus relief 
            for prisoners who assert innocence based on newly discovered 
            evidence should generally be denied. \5\
---------------------------------------------------------------------------

                    \5\ 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).
                             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, 514 U.S. 549, 552, 567-
            68 (1995).
---------------------------------------------------------------------------
--Federal Regulations Affecting State Activities and 
    Instrumentalities
[P. 1518, add new paragraph at end of section:]

                    Extending the principle applied in New York, the 
            Court in Printz v. United States \2\ held that Congress may 
            not ``circumvent'' the prohibition on commandeering a 
            state's regulatory processes ``by conscripting the State's 
            officers directly.'' \3\ Struck down in Printz were interim 
            provisions of the Brady Handgun Violence Protection Act that 
            required state and local law enforcement officers to conduct 
            background checks on prospective handgun purchasers. ``The 
            Federal Government may neither issue directives requiring 
            the States to address particular problems, nor command the 
            States' officers . . . to administer or enforce a federal 
            regulatory program. It matters not whether policymaking is 
            involved, and no case-by-case weighing of the burdens or 
            benefits is necessary; such commands are fundamentally 
            incompatible with our constitutional system of dual 
            sovereignty.'' \4\
---------------------------------------------------------------------------

                    \2\ 521 U.S. 898 (1997).
                    \3\ 521 U.S. at 935.
                    \4\ Id.
                           ELEVENTH AMENDMENT

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

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

                    \1\ California v. Deep Sea Research, Inc., 118 S. 
            Ct. 1464 (1998) (application of the Abandoned Shipwreck Act) 
            (distinguishing Ex parte New York and Treasure Salvors as 
            involving in rem actions against property actually in 
            possession of the State).
---------------------------------------------------------------------------
[P. 1527, add to n.32 after first citation:]
                Breard v. Greene, 118 S. Ct. 1352, 1356 (1998) (foreign 
            nation may not contest validity of criminal conviction after 
            State's failure at time of arrest to comply with notice 
            requirements of Vienna Convention on Consular Relations).
The Nature of the States' Immunity
[P. 1527, add to n.33:]
                Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 
            (1996).
[P. 1528, add to n.43 after first sentence and accompanying 
    citation:]
                Of course, when a state is sued in federal court 
            pursuant to federal law, the Federal Government, not the 
            defendant state, is ``the authority that makes the law'' 
            creating the right of action. See Seminole Tribe of Florida 
            v. Florida, 517 U.S. 44, 154 (1996) (Justice Souter 
            dissenting).
[P. 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, \2\ 
            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. \3\
---------------------------------------------------------------------------

                    \2\ 517 U.S. 44 (1996).
                    \3\ 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.
---------------------------------------------------------------------------
Suits Against States
--Consent to Suit and Waiver
[P. 1533, add to n.68:]
                The fact that a state agency can be indemnified for the 
            costs of litigation does not divest the agency of its 
            Eleventh Amendment immunity. Regents of the University of 
            California v. Doe, 519 U.S. 425 (1997).
--Congressional Withdrawal of Immunity
[P. 1535, delete last sentence of first paragraph and 
    substitute the following new paragraph:]

                    Pennsylvania v. Union Gas lasted less than seven 
            years, the Court overruling it in Seminole Tribe of Florida 
            v. Florida. \4\ 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].'' \5\ 
            In the majority's view, Union Gas had deviated from a line 
            of cases tracing back to Hans v. Louisiana \6\ that viewed 
            the Eleventh Amendment as implementing the ``fundamental 
            principle of sovereign immunity [that] limits the grant of 
            judicial authority in Article III.'' \7\ 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.'' \8\ Section 5 of the Fourteenth Amendment, 
            of course, is another matter. Fitzpatrick v. Bitzer, \9\ 
            ``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. \10\
---------------------------------------------------------------------------

                    \4\ 517 U.S. 44 (1996) (invalidating a provision of 
            the Indian Gaming Regulatory Act authorizing an Indian tribe 
            to sue a State in federal court to compel performance of a 
            duty to negotiate in good faith toward the formation of a 
            compact).
                    \5\ 517 U.S. at 63.
                    \6\ 134 U.S. 1 (1890).
                    \7\ 517 U.S. at 64 (quoting Pennhurst State School & 
            Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984).
                    \8\ Id. at 72-73. Justice Souter's dissent undertook 
            a lengthy refutation of the majority's analysis, asserting 
            that the Eleventh Amendment is best understood, in keeping 
            with its express language, as barring only suits based on 
            diversity of citizenship, and as having no application to 
            federal question litigation. Moreover, Justice Souter 
            contended, the state sovereign immunity that the Court 
            mistakenly recognized in Hans v. Louisiana was a common law 
            concept that ``had no constitutional status and was subject 
            to congressional abrogation.'' 517 U.S. at 117. The 
            Constitution made no provision for wholesale adoption of the 
            common law, but, on the contrary, was premised on the view 
            that common law rules would always be subject to legislative 
            alteration. This ``imperative of legislative control grew 
            directly out of the Framers' revolutionary idea of popular 
            sovereignty.'' Id. at 160.
                    \9\ 427 U.S. 445 (1976).
                    \10\ 517 U.S. at 65-66.
---------------------------------------------------------------------------
Suits Against State Officials
[P. 1540, add to n.105:]
                In the process of limiting application of Young, a Court 
            majority has recently referred to ``the Young fiction.'' 
            Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281 (1997).
[P. 1541, add to n.112:]
                In a case removed from state court, presence of a claim 
            barred by the Eleventh Amendment does not destroy 
            jurisdiction over non-barred claims. Wisconsin Dep't of 
            Corrections v. Schacht, 118 S. Ct. 2047 (1998).
[P. 1544, add as first full paragraph on page (penultimate 
    paragraph in section):]

                    In Idaho v. Coeur d'Alene Tribe, \11\ the Court 
            further narrowed Ex parte Young. The implications of the 
            case are difficult to predict, due to the narrowness of the 
            Court's holding, the closeness of the vote (5-4), and the 
            inability of the majority to agree on a rationale. The 
            holding was that the Tribe's suit against state officials 
            for a declaratory judgment and injunction to establish the 
            Tribe's ownership and control of the submerged lands of Lake 
            Coeur d'Alene is barred by the Eleventh Amendment. The 
            Tribe's claim was based on federal law--Executive Orders 
            issued in the 1870s, prior to Idaho Statehood. The portion 
            of Justice Kennedy's opinion that represented the opinion of 
            the Court concluded that the Tribe's ``unusual'' suit was 
            ``the functional equivalent of a quiet title action which 
            implicates special sovereignty interests.'' \12\ The case 
            was ``unusual'' because state ownership of submerged lands 
            traces to the Constitution through the ``equal footing 
            doctrine,'' and because navigable waters ``uniquely 
            implicate sovereign interests.'' \13\ This was therefore no 
            ordinary property dispute in which the State would retain 
            regulatory control over land regardless of title. Rather, 
            grant of the ``far-reaching and invasive relief'' sought by 
            the Tribe ``would diminish, even extinguish, the State's 
            control over a vast reach of lands and waters long . . . 
            deemed to be an integral part of its territory.'' \14\ A 
            separate part of Justice Kennedy's opinion, joined only by 
            Chief Justice Rehnquist, advocated more broadscale 
            diminishment of Young. The two would apply case-by-case 
            balancing, taking into account the availability of a state 
            court forum to resolve the dispute and the importance of the 
            federal right at issue. Concurring Justice O'Connor, joined 
            by Justices Scalia and Thomas, rejected such balancing. 
            Young was inapplicable, Justice O'Connor explained, because 
            ``it simply cannot be said'' that a suit to divest the State 
            of all regulatory power over submerged lands ``is not a suit 
            against the State.'' \15\
---------------------------------------------------------------------------

                    \11\ 521 U.S. 261 (1997).
                    \12\ 521 U.S. at 281.
                    \13\ Id. at 284.
                    \14\ Id. at 282.
                    \15\ Id. at 296.
                          FOURTEENTH AMENDMENT

DUE PROCESS OF LAW
The Development of Due Process of Law
--``Liberty''
[P. 1581, add to n.75:]
                County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998) 
            (high-speed automobile chase by police officer causing death 
            through deliberate or reckless indifference to life would 
            not violate the Fourteenth Amendment's guarantee of 
            substantive due process).
Health, Safety and Morals
--Protecting Morality
[P.1636, add to text following n.163:]

                    Similarly, a court may order a car used in an act of 
            prostitution forfeited as a public nuisance, even if this 
            works a deprivation on an innocent joint owner of the car. 
            \1\
---------------------------------------------------------------------------

                    \1\ Bennis v. Michigan, 516 U.S. 442 (1996).
---------------------------------------------------------------------------
Procedure in Taxation
--Sufficiency of Remedy
[P.1665, add to n.177:]
                See also Reich v. Collins, 513 U.S. 106 (1994) 
            (violation of due process to hold out a post-deprivation 
            remedy for unconstitutional taxation and then, after the 
            disputed taxes had been paid, to declare that no such remedy 
            exists); Newsweek, Inc. v. Florida Dep't of Revenue, 118 S. 
            Ct. 904 (1998) (violation of due process to limit remedy to 
            one who pursued pre-payment of tax, where litigant 
            reasonably relied on apparent availability of post-payment 
            remedy).
Substantive Due Process and Noneconomic Liberty
[P. 1690, change heading to:]
--Liberty Interests of the Retarded, Mentally Ill or 
    Abnormal: Civil Commitment and Treatment
[P. 1691, add paragraph to text after n.310:]

                    The Court's resolution of a case involving 
            persistent sexual offenders suggests that state civil 
            commitment systems, besides confining the dangerously 
            mentally ill, may also act to incapacitate persons 
            predisposed to engage in specific criminal behaviors. In 
            Kansas v. Hendricks, \2\ the Court upheld a Kansas state law 
            which allowed civil commitment without a showing of ``mental 
            illness,'' so that a defendant diagnosed as a pedophile 
            could be committed based on his having a ``mental 
            abnormality'' which made him ``likely to engage in acts of 
            sexual violence.'' Although the Court minimized the use of 
            this expanded nomenclature, \3\ the concept of abnormality 
            appears both more encompassing and less defined than the 
            concept of illness. It is unclear how, or whether, the Court 
            would distinguish this case from the indefinite civil 
            commitment of other recidivists such as drug offenders.
---------------------------------------------------------------------------

                    \2\ 521 U.S. 346 (1997).
                    \3\ 521 U.S. at 359. But see Foucha v. Lousiana, 504 
            U.S. 71, 80 (1992) (holding that a state can not hold a 
            person suffering from a personality disorder without clear 
            and convincing proof of a mental illness).
---------------------------------------------------------------------------
--``Right to Die''
[P. 1693, add new paragraph at end of section:]

                    In Washington v. Glucksberg, \4\ however, the 
            Supreme Court rejected an argument that the Due Process 
            Clause provides a terminally ill individual the right to 
            seek and obtain a physician's aid in committing suicide. 
            Reviewing a challenge to a state statutory prohibition 
            against assisted suicide, the Court noted that it moves with 
            ``utmost care'' before breaking new ground in the area of 
            liberty interests. \5\ The Court pointed out that suicide 
            and assisted suicide have long been disfavored by the 
            American judicial system, and courts have consistently 
            distinguished between passively allowing death to occur and 
            actively causing such death. The Court rejected the 
            applicability of Cruzan and other liberty interest cases, 
            \6\ noting that while many of the interests protected by the 
            Due Process Clause involve personal autonomy, not all 
            important, intimate, and personal decisions are so 
            protected. By rejecting the notion that assisted suicide is 
            constitutionally protected, the Court also appears to 
            preclude constitutional protection for other forms of 
            intervention in the death process, such as suicide or 
            euthanasia. \7\
---------------------------------------------------------------------------

                    \4\ 521 U.S. 702 (1997). In the companion case of 
            Vacco v. Quill, 521 U.S. 793 (1997), the Court also rejected 
            an argument that a state which prohibited assisted suicide 
            but which allowed termination of medical treatment resulting 
            in death unreasonably discriminated against the terminally 
            ill in violation of the Equal Protection Clause of the 
            Fourteenth Amendment.
                    \5\ 521 U.S. at 720.
                    \6\ E.g., Planned Parenthood v. Casey, 505 U.S. 833 
            (1992) (upholding a liberty interest in terminating 
            pregnancy).
                    \7\ A passing reference by Justice O'Connor in a 
            concurring opinion in Glucksberg and its companion case 
            Vacco v. Quill may, however, portend a liberty interest in 
            seeking pain relief, or ``palliative'' care. Glucksberg and 
            Vacco 521 U.S. at 736-37 (Justice O'Connor, concurring).
---------------------------------------------------------------------------
PROCEDURAL DUE PROCESS: CIVIL
Power of the 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. 
            \8\ These limits may be discerned by a court by examining 
            the degree of reprehensibility of the act, the ratio between 
            the punitive award and plaintiff's actual or potential harm, 
            and the legislative sanctions provided for comparable 
            misconduct. \9\
---------------------------------------------------------------------------

                    \8\ BMW v. Gore, 517 U.S. 559 (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).
                    \9\ BMW v. Gore, 517 U.S. at 574-75 (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. 1730, add to n.214 after citation to Connecticut Bd. of 
    Pardons v. Dumschat:]
                Ohio Adult Parole Auth. v. Woodard, 118 S. Ct. 1244 
            (1998).
[P.1731, add to text following n.215:]

                    In an even more recent case, the Court limited the 
            application of this test to those circumstances where the 
            restraint on freedom imposed by the State creates an 
            ``atypical and significant'' deprivation. \10\
---------------------------------------------------------------------------

                    \10\ Sandin v. Conner, 515 U.S. 472, 484 (1995) 
            (solitary confinement not atypical ``in relation to the 
            ordinary incidents of prison life'').
---------------------------------------------------------------------------
--When is Process Due
[P. 1737, add to text following n.246:]

                    Where the adverse action is less than termination of 
            employment, the governmental interest is significant, and 
            where reasonable grounds for such action have been 
            established separately, then a prompt hearing held after the 
            adverse action may be sufficient. \11\
---------------------------------------------------------------------------

                    \11\ Gilbert v. Homar, 520 U.S. 924 (1997) (no 
            hearing required prior to suspension without pay of tenured 
            police officer arrested and charged with a felony).
---------------------------------------------------------------------------
--The Requirements of Due Process
[P. 1741, add to n.269:]
                See also Richards v. Jefferson County, 517 U.S. 793 
            (1996) (res judicata may not apply where taxpayers who 
            challenged a county's occupation tax had not been informed 
            of the prior case and where their interests had not been 
            adequately protected).
PROCEDURAL DUE PROCESS: CRIMINAL
The Elements of Due Process
--Other Aspects of Statutory Notice
[P. 1750, add to text following n.24:]

                    Persons may be bound by a novel application of a 
            statute, not supported by Supreme Court or other 
            ``fundamentally similar'' case precedent, so long as the 
            court can find that, under the circumstance, ``unlawfulness 
            . . . is apparent'' to the defendant. \12\
---------------------------------------------------------------------------

                    \12\ United States v. Lanier, 520 U.S. 259, 271-72 
            (1997).
---------------------------------------------------------------------------
--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, 510 U.S. 266 
            (1994) (holding that there is no civil rights action based 
            on the Fourteenth Amendment for arrest and imposition of 
            bond without probable cause).
--Fair Trial
[P. 1756, add to n.59:]
                But see Montana v. Egelhoff, 518 U.S. 37 (1996) (state 
            may bar defendant from introducing evidence of intoxication 
            to prove lack of mens rea).
--Prosecutorial Misconduct
[P. 1760, add to n.76:]
                See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per 
            curiam) (holding no Due Process violation where prosecutor's 
            failure to disclose the result of a witness' polygraph test 
            would not have affected the outcome of the case).
--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).
                Where the sentencing factor in question is one 
            traditionally associated with sentencing, such factor may 
            even be the basis for a significant increase in the maximum 
            sentence available, despite the fact that the factor itself 
            is not treated as an element of that crime. Almendarez-
            Torres v. United States, 118 S. Ct. 1219 (1998) (deported 
            alien reentering the United States subject to a maximum 
            sentence of two years, but upon proof of felony record, is 
            subject to maximum sentence of twenty years.)
[P. 1765, add to n.104 after Spencer v. Texas cite:]
                Parke v. Raley, 506 U.S. 20 (1992).
--The Problem of the Incompetent or Insane Defendant or 
    Convict
[P. 1769, add to n.120:]
                It is a violation of due process, however, for a state 
            to require that a defendant must prove competence to stand 
            trial by clear and convincing evidence. Cooper v. Oklahoma, 
            517 U.S. 348 (1996).
--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, 518 U.S. 343 (1996) (no 
            requirement that the State ``enable [a] prisoner to discover 
            grievances, and to litigate effectively'').
--Probation and Parole
[P. 1780, add to text at end of sentence carried over from 
    preceding page:]

                    The power of the executive to pardon, or grant 
            clemency, being a matter of grace, is rarely subject to 
            judicial review. \13\
---------------------------------------------------------------------------

                    \13\ Ohio Adult Parole Auth. v. Woodard, 118 S. Ct. 
            1244 (1998).
---------------------------------------------------------------------------
EQUAL PROTECTION OF THE LAWS
Equal Protection: Judging Classification by Law
--The Traditional Standard: Restrained Review
[P. 1805, add footnote to sentence appearing after n.107:]
                Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide 
            prohibition does not violate Equal Protection Clause by 
            distinguishing between terminally ill patients on life-
            support systems who are allowed to direct the removal of 
            such systems and patients who are not on life support 
            systems and are not allowed to hasten death by self-
            administering prescribed drugs).
TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND 
    RELATED EXERCISES OF THE POLICE POWER
Police Power Regulation
--Classification
[P. 1831, add to n.260 after paragraph headed 
    ``Attorneys'':]
                Cable Television: exemption from regulation under the 
            Cable Communications Policy Act of facilities that serve 
            only dwelling units under common ownership. FCC v. Beach 
            Communications, 508 U.S. 307 (1993). Regulatory efficiency 
            is served by exempting those systems for which the costs of 
            regulation exceed the benefits to consumers, and potential 
            for monopoly power is lessened when a cable system operator 
            is negotiating with a single owner.
EQUAL PROTECTION AND RACE
Juries
[P. 1855, add to n.79 after citation to Powers v. Ohio:]
                Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury).
Permissible Remedial 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 \14\ 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.'' \15\
---------------------------------------------------------------------------

                    \14\ 515 U.S. 200 (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.
                    \15\ 515 U.S. at 227 (emphasis original).
---------------------------------------------------------------------------
THE NEW EQUAL PROTECTION
Classifications Meriting Close Scrutiny
--Sex
[P. 1879, add to text after n.51:]

                    Even when the negative ``stereotype'' which is 
            evoked is that of a stereotypical male, the Court has 
            evaluated this as potential gender discrimination. In J.E.B. 
            v. Alabama ex rel. T.B., \16\ the Court addressed a 
            paternity suit where men had been intentionally excluded 
            from a jury through peremptory strikes. The Court rejected 
            as unfounded the argument that men, as a class, would be 
            more sympathetic to the defendant, the putative father. The 
            Court also determined that gender-based exclusion of jurors 
            would undermine the litigants' interest by tainting the 
            proceedings, and in addition would harm the wrongfully 
            excluded juror.
---------------------------------------------------------------------------

                    \16\ 511 U.S. 127 (1994).
---------------------------------------------------------------------------
[P. 1881, add to n.58:]
                See also Miller v. Albright, 118 S. Ct. 1428 (1998) 
            (opinion by Justice Stevens, joined by Justice Rehnquist) 
            (equal protection not violated where child of a citizen 
            mother is established at birth, but child of citizen father 
            must establish paternity by age 18).
[P. 1885, add to text after n.76:]

                    In a 1996 case, the Court required that a state 
            demonstrate ``exceedingly persuasive justification'' for 
            gender discrimination. When a female applicant challenged 
            the exclusion of women from the historically male-only 
            Virginia Military Institute (VMI), the State of Virginia 
            defended the exclusion of females as essential to the nature 
            of training at the military school. \17\ 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.
---------------------------------------------------------------------------

                    \17\ United States v. Virginia, 518 U.S. 515 (1996).
---------------------------------------------------------------------------
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. \18\ 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, \19\ although three Justices would not preclude the 
            creation of ``reasonably compact'' majority-minority 
            districts in order to remedy past discrimination or to 
            comply with the requirements of the Voting Rights Act of 
            1965. \20\
---------------------------------------------------------------------------

                    \18\ Miller v. Johnson, 515 U.S. 900 (1995) (drawing 
            congressional district lines in order to comply with Sec. 5 
            of the Voting Rights Act as interpreted by the Department of 
            Justice not a compelling governmental interest).
                    \19\ Id.; Shaw v. Reno, 509 U.S. 630 (1993). See 
            also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an 
            unconventionally-shaped majority-minority congressional 
            district in one portion of state in order to alleviate 
            effect of fragmenting geographically compact minority 
            population in another portion of state does not remedy a 
            violation of Sec. 2 of Voting Rights Act, and is thus not a 
            compelling governmental interest).
                    \20\ Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion 
            of Justice O'Connor, joined by Chief Justice Rehnquist and 
            Justice Kennedy) (also involving congressional districts).
---------------------------------------------------------------------------
[P. 1916, add new heading and text following n.24:]
Sexual Orientation

                    In Romer v. Evans, \21\ 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. \22\ The Court also rejected the 
            application of the heightened standard reserved for suspect 
            classes, and sought only to determine whether the 
            legislative classification had a rational relation to a 
            legitimate end.
---------------------------------------------------------------------------

                    \21\ 517 U.S. 620 (1996).
                    \22\ 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.'' \23\ 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.
---------------------------------------------------------------------------

                    \23\ 517 U.S. at 634, quoting Department of 
            Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
---------------------------------------------------------------------------
THE NEW EQUAL PROTECTION
Poverty and Fundamental Interests: The Intersection of Due 
    Process and Equal Protection
--Access to Courts
[P. 1922, add paragraph to text following n.56:]

                    The continuing vitality of Griffin v. Illinois, 
            however, is seen in the case of M.L.B. v. S.L.J., \24\ where 
            the Court considered whether a state seeking to terminate 
            the parental rights of an indigent must pay for the 
            preparation of the transcript required for pursuing an 
            appeal. Unlike in Boddie, the State, Mississippi, had 
            afforded the plaintiff a trial on the merits, and thus the 
            ``monopolization'' of the avenues of relief alleged in 
            Boddie was not at issue. As in Boddie, however, the Court 
            focused on the substantive due process implications of the 
            state limiting ``[c]hoices about marriage, family life, and 
            the upbringing of children,'' \25\ while also referencing 
            cases establishing a right of equal access to criminal 
            appellate review. Noting that even a petty offender had a 
            right to have the state pay for the transcript needed for an 
            effective appeal, \26\ and that the forced dissolution of 
            parental rights was ``more substantial than mere loss of 
            money,'' \27\ the Court ordered Mississippi to provide the 
            plaintiff the court records necessary to pursue her appeal.
---------------------------------------------------------------------------

                    \24\ 519 U.S. 102 (1996).
                    \25\ 519 U.S. at 106. See Boddie v. Connecticut, 401 
            U.S. 371 (1971).
                    \26\ Mayer v. Chicago, 404 U.S. 189 (1971).
                    \27\ 519 U.S. at 121 (quoting Santosky v. Kramer, 
            455 U.S. 745, 756 (1982)).
---------------------------------------------------------------------------
ENFORCEMENT
Congressional Definition of Fourteenth Amendment Rights
[P. 1936, add to text following n.127:]

                    The case of City of Boerne v. Flores, \28\ however, 
            illustrates that the Court will not always defer to 
            Congress's determination as to what legislation is 
            appropriate to ``enforce'' the provisions of the Fourteenth 
            Amendment. In Flores, the Court held that the Religious 
            Freedom Restoration Act, \29\ which expressly overturned the 
            Court's narrowing of religious protections under Employment 
            Division v. Smith, \30\ exceeded congressional power under 
            section 5 of the Fourteenth Amendment. Although the Court 
            allowed that Congress's power to legislate to deter or 
            remedy constitutional violations may include prohibitions on 
            conduct that is not itself unconstitutional, the Court also 
            held that there must be ``a congruence and proportionality'' 
            between the means adopted and the injury to be remedied. 
            \31\ Unlike the pervasive suppression of the African 
            American vote in the South which led to the passage of the 
            Voting Rights Act, there was no similar history of religious 
            persecution constituting an ``egregious predicate'' for the 
            far-reaching provision of the Religious Freedom Restoration 
            Act. Also, unlike the Voting Rights Act, the Religious 
            Freedom Restoration Act contained no geographic restrictions 
            or termination dates. \32\
---------------------------------------------------------------------------

                    \28\ 521 U.S. 507 (1997).
                    \29\ Pub. L. 103-141, 107 Stat. 1488, 42 U.S.C. 
            Sec. 2000bb et. seq.
                    \30\ 494 U.S. 872 (1990).
                    \31\ 521 U.S. at 533.
                    \32\ 521 U.S. at 532-33. The Court found that the 
            Religious Freedom Restoration Act was ``so far out of 
            proportion to a supposed remedial or preventive object that 
            it cannot be understood as responsive to, or designed to 
            prevent, unconstitutional behavior.'' Id.
                         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\ 517 U.S. 484 (1996) (statutory prohibition 
            against advertisements that provide the public with accurate 
            information about retail prices of alcoholic beverages is 
            not shielded from constitutional scrutiny by the Twenty-
            first Amendment).
                    \3\ 517 U.S. at 516 (quoting Capital Cities Cable, 
            Inc., v. Crisp, 467 U.S. 691, 712 (1984)).
                    \4\ 517 U.S. at 515.
   ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE 
                   SUPREME COURT OF THE UNITED STATES

128. Act of 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., 514 U.S. 476 
                                    (1995).

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

                                Justice concurring specially: Stevens.

129. Act of Aug. 16, 1954, ch. 736, 68A Stat. 521, 26 U.S.C. 
        Sec. 4371(1).
                    A federal tax on insurance premiums paid to foreign 
            insurers not subject to the federal income tax violates the 
            Export Clause, Art. I, Sec. 9, cl. 5, as applied to casualty 
            insurance for losses incurred during the shipment of goods 
            from locations within the United States to purchasers 
            abroad.

                                United States v. IBM Corp., 517 U.S. 843 
                                    (1996).

                                Justices concurring: Thomas, 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, 518 U.S. 604 (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 violates the Eleventh 
            Amendment. In exercise of its powers under Article I, 
            Congress may not abrogate States' Eleventh Amendment 
            immunity from suit in federal court. Pennsylvania v. Union 
            Gas Co., 491 U.S. 1 (1989), is overruled.

                                Seminole Tribe of Florida v. Florida, 
                                    517 U.S. 44 (1996).

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

                                Justices dissenting: Stevens, Souter, 
                                    Ginsburg and Breyer.

132. Act of Nov. 30, 1989 (Pub. L. 101-194, Sec. 601), 103 Stat. 1760, 5 
        U.S.C. app. Sec. 501.
                    Section 501(b) of the Ethics in Government Act, as 
            amended in 1989 to prohibit Members of Congress and federal 
            employees from accepting honoraria, violates the First 
            Amendment as applied to Executive Branch employees below 
            grade GS-16. The ban is limited to expressive activity and 
            does not include other outside income, and the ``speculative 
            benefits'' of the ban do not justify its ``crudely crafted 
            burden'' on expression.

                                United States v. National Treasury 
                                    Employees Union, 513 U.S. 454 
                                    (1995).

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

                                Justice concurring in part and 
                                    dissenting in part: O'Connor.

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

133. Act of Nov. 29, 1990 (Pub. L. 101-647, Sec. 1702), 104 Stat. 4844, 
        18 U.S.C. Sec. 922q.
                    The Gun Free School Zones Act of 1990, which makes 
            it a criminal offense to knowingly possess a firearm within 
            a school zone, exceeds congressional power under the 
            Commerce Clause. It is ``a criminal statute that by its 
            terms has nothing to do with `commerce' or any sort of 
            economic enterprise.'' Possession of a gun at or near a 
            school ``is in no sense an economic activity that might, 
            through repetition elsewhere, substantially affect any sort 
            of interstate commerce.''

                                United States v. Lopez, 514 U.S. 549 
                                    (1995).

                                Justices concurring: Chief Justice 
                                    Rehnquist, 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., 514 
                                    U.S. 211 (1995).

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

                                Justice concurring specially: Breyer.

                                Justices dissenting: Stevens and 
                                    Ginsburg.

135. Act of Oct. 5, 1992 (Pub. L. 102-385, Sec. Sec. 10(b) and 10(c)), 
        106 Stat. 1487, 1503; 47 U.S.C. Sec. 532(j) and Sec. 531 note, 
        respectively.
                    Section 10(b) of the Cable Television Consumer 
            Protection and Competition Act of 1992, which requires cable 
            operators to segregate and block indecent programming on 
            leased access channels if they do not prohibit it, violates 
            the First Amendment. Section 10(c) of the Act, which permits 
            a cable operator to prevent transmission of ``sexually 
            explicit'' programming on public access channels, also 
            violates the First Amendment.

                                Denver Area Educ. Tel. Consortium v. 
                                    FCC, 518 U.S. 727 (1996).

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

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

136. Act of Oct. 30, 1984, (Pub. L. 98-608, Sec. 1(4)), 98 Stat. 3173, 
        25 U.S.C. Sec. 2206.
                    Section 207 of the Indian Land Consolidation Act, as 
            amended in 1984, effects an unconstitutional taking of 
            property without compensation by restricting a property 
            owner's right to pass on property to his heirs. The amended 
            section, like an earlier version held unconstitutional in 
            Hodel v. Irving (1987), provides that certain small 
            interests in Indian land will escheat to the tribe upon 
            death of the owner. None of the changes made in 1984 cures 
            the constitutional defect.z

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

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

                                Justice dissenting: Stevens.

137. Act of Nov. 16, 1993 (Pub. L. 103-141), 107 Stat. 1488, 42 U.S.C. 
        Sec. Sec. 2000bb to 2000bb-4.
                    The Religious Freedom Restoration Act, which 
            directed use of the compelling interest test to determine 
            the validity of laws of general applicability that 
            substantially burden the free exercise of religion, exceeds 
            congressional power under section 5 of the Fourteenth 
            Amendment. Congress' power under Section 5 to ``enforce'' 
            the Fourteenth Amendment by ``appropriate legislation'' does 
            not extend to defining the substance of the Amendment's 
            restrictions. This RFRA appears to do. RFRA ``is so far out 
            of proportion to a supposed remedial or preventive object 
            that it cannot be understood as responsive to, or designed 
            to prevent, unconstitutional behavior.''

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

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

                                Justice concurring specially: Scalia.

                                Justices dissenting: O'Connor, Breyer; 
                                    Souter.

138. Act of Feb. 8, 1996, 110 Stat. 56, 133-34 (Pub. L. 104-104, title 
        V, Sec. 502), 47 U.S.C. Sec. Sec. 223(a), 223(d).
                    Two provisions of the Communications Decency Act of 
            1996--one that prohibits knowing transmission on the 
            Internet of obscene or indecent messages to any recipient 
            under 18 years of age, and the other that prohibits the 
            knowing sending or displaying of patently offensive messages 
            in a manner that is available to anyone under 18 years of 
            age--violate the First Amendment.

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

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

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

139. Act of Nov. 30, 1993 (Pub. L. 103-159), 107 Stat. 1536.
                    Interim provisions of the Brady Handgun Violence 
            Prevention Act that require state and local law enforcement 
            officers to conduct background checks on prospective handgun 
            purchasers are inconsistent with the Constitution's 
            allocation of power between Federal and State governments. 
            In New York v. United States, 505 U.S. 144 (1992), the Court 
            held that Congress may not compel states to enact or enforce 
            a federal regulatory program, and ``Congress cannot 
            circumvent that prohibition by conscripting the State's 
            officers directly.''

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

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

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

140. Act of Nov. 17, 1986 (Pub. L. 99-662, title IV, Sec. 1402(a)), 26 
        U.S.C. Sec. Sec. 4461, 4462.
                    The Harbor Maintenance Tax (HMT) violates the Export 
            Clause of the Constitution, Art. I, Sec. 9, cl. 5 to the 
            extent that the tax applies to goods loaded for export at 
            United States ports. The HMT, which requires shippers to pay 
            a uniform charge of 0.125% of cargo value on commercial 
            cargo shipped through the Nation's ports, is an 
            impermissible tax rather than a permissible user fee. The 
            value of export cargo does not correspond reliably with 
            federal harbor services used by exporters, and the tax does 
            not, therefore, represent compensation for services 
            rendered.

                                United States v. United States Shoe 
                                    Corp., 118 S. Ct. 1290 (1998).

141. Act of Oct. 19, 1976 (Pub. L. 94-553, Sec. 101(c)), 17 U.S.C. 
        Sec. 504(c).
                    Section 504(c) of the Copyright Act, which 
            authorizes a copyright owner to recover statutory damages, 
            in lieu of actual damages, ``in a sum of not less than $500 
            or more than $20,000 as the court considers just,'' does not 
            grant the right to a jury trial on the amount of statutory 
            damages. The Seventh Amendment, however, requires a jury 
            determination of the amount of statutory damages.

                                Feltner v. Columbia Pictures Television, 
                                    118 S. Ct. 1279 (1998).

142. Act of Oct. 24, 1992, Title XIX, 106 Stat. 3037 (Pub. L. 102-486), 
        26 U.S.C. Sec. Sec. 9701-9722.
                    The Coal Industry Retiree Health Benefit Act of 1992 
            is unconstitutional as applied to the petitioner Eastern 
            Enterprises. Pursuant to the Act, the Social Security 
            Commissioner imposed liability on Eastern for funding health 
            care benefits of retirees from the coal industry who had 
            worked for Eastern prior to 1966. Eastern had transferred 
            its coal-related business to a subsidiary in 1965. Four 
            Justices viewed the imposition of liability on Eastern as a 
            violation of the Takings Clause, and one Justice viewed it 
            as a violation of substantive due process.

                                Eastern Enterprises v. Apfel, 118 S. Ct. 
                                    2131 (1998).

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

                                Justice concurring specially: Kennedy.

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

143. Act of April 9, 1996, 110 Stat. 1200 (Pub. L. 104-130), 2 U.S.C. 
        Sec. Sec. 691 et seq.
                    The Line Item Veto Act, which gives the President 
            the authority to ``cancel in whole'' three types of 
            provisions that have been signed into law, violates the 
            Presentment Clause of Article I, section 7. In effect, the 
            law grants to the President ``the unilateral power to change 
            the text of duly enacted statutes.'' This Line Item Veto Act 
            authority differs in important respects from the President's 
            constitutional authority to ``return'' (veto) legislation: 
            the statutory cancellation occurs after rather than before a 
            bill becomes law, and can apply to a part of a bill as well 
            as the entire bill.

                                Clinton v. City of New York, 118 S. Ct. 
                                    2091 (1998).

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

                                Justices dissenting: Scalia, O'Connor, 
                                    and Breyer.
                    STATE ACTS HELD UNCONSTITUTIONAL

1090. Edenfield v. Fane, 507 U.S. 761 (1993).
                    A rule of the Florida Board of Accountancy banning 
            ``direct, in-person, uninvited solicitation'' of business by 
            certified public accountants is inconsistent with the free 
            speech guarantees of the First Amendment.

                                Justices concurring: Kennedy, White, 
                                    Blackmun, Stevens, Scalia, Souter, 
                                    Thomas, and Chief Justice Rehnquist.

                                Justice dissenting: O'Connor.

1091. Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114 (1993).
                    Oklahoma may not impose income taxes or motor 
            vehicle taxes on members of the Sac and Fox Nation who live 
            in ``Indian country,'' whether the land is within 
            reservation boundaries, on allotted lands, or in dependent 
            communities. Such tax jurisdiction is considered to be 
            preempted unless Congress has expressly provided to the 
            contrary.

1092. Department of Treasury v. Fabe, 508 U.S. 491 (1993).
                    An Ohio statute setting priority of claims against 
            insolvent insurance companies is preempted by the federal 
            priority statute, 31 U.S.C. Sec. 3713, which accords first 
            priority to the United States, to the extent that the Ohio 
            law protects the claims of creditors who are not 
            policyholders. Insofar as it protects the claims of 
            policyholders, the law is saved from preemption by section 
            2(b) of the McCarran-Ferguson Act.

                                Justices concurring: Blackmun, White, 
                                    Stevens, O'Connor, and Chief Justice 
                                    Rehnquist.

                                Justices dissenting: Kennedy, Scalia, 
                                    Souter, Thomas.

1093. Oregon Waste Systems v. Oregon Dep't of Environmental Quality, 511 
        U.S. 93 (1994).
                    Oregon's imposition of a surcharge on in-state 
            disposal of solid waste generated in other states--a tax 
            three times greater than the fee charged for disposal of 
            waste that was generated in Oregon--constitutes an invalid 
            burden on interstate commerce. The tax is facially 
            discriminatory against interstate commerce, is not a valid 
            compensatory tax, and is not justified by any other 
            legitimate state interest.

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

                                Justices dissenting: Chief Justice 
                                    Rehnquist, and Blackmun.

1094. Associated Industries v. Lohman, 511 U.S. 641 (1994).
                    Missouri's uniform, statewide use tax constitutes an 
            invalid discrimination against interstate commerce in those 
            counties in which the use tax is greater than the sales tax 
            imposed as a local option, even though the overall statewide 
            effect of the use tax places a lighter aggregate tax burden 
            on interstate commerce than on intrastate commerce.

1095. Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (1994).
                    Montana's tax on the possession of illegal drugs, to 
            be ``collected only after any state or federal fines or 
            forfeitures have been satisfied,'' constitutes punishment, 
            and violates the prohibition, derived from the Double 
            Jeopardy Clause, against successive punishments for the same 
            offense.

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

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

1096. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994).
                    A Massachusetts milk pricing order, imposing an 
            assessment on all milk sold by dealers to Massachusetts 
            retailers, is an unconstitutional discrimination against 
            interstate commerce because the entire assessment is then 
            distributed to Massachusetts dairy farmers in spite of the 
            fact that about two-thirds of the assessed milk is produced 
            out of state. The discrimination imposed by the pricing 
            order is not justified by a valid factor unrelated to 
            economic protectionism.

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

                                Justices concurring specially: Scalia 
                                    and Thomas.

                                Justices dissenting: Chief Justice 
                                    Rehnquist and Blackmun.

1097. Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).
                    A provision of the Oregon Constitution, prohibiting 
            judicial review of the amount of punitive damages awarded by 
            a jury unless the court can affirmatively say there is no 
            evidence to support the verdict, is invalid under the Due 
            Process Clause of the Fourteenth Amendment. Judicial review 
            of the amount awarded was one of the few procedural 
            safeguards available at common law, yet Oregon has removed 
            that safeguard without providing any substitute procedure, 
            and with no indication that the danger of arbitrary awards 
            has subsided.

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

                                Justices dissenting: Ginsburg and Chief 
                                    Justice Rehnquist.

1098. Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 
        (1994).
                    A New York State law creating a special school 
            district for an incorporated village composed exclusively of 
            members of one small religious sect violates the 
            Establishment Clause.

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

                                Justice concurring specially: Kennedy.

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

1099. American Airlines v. Wolens, 513 U.S. 219 (1995).
                    The Illinois Consumer Fraud Act, to the extent that 
            it authorizes actions in state court challenging as ``unfair 
            or deceptive'' marketing practices an airline company's 
            changes in its frequent flyer program, is preempted by the 
            Airline Deregulation Act, which prohibits states from 
            ``enact[ing] or enforc[ing] any law . . . relating to [air 
            carrier] rates, routes, or services.''

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

                                Justices concurring specially: O'Connor, 
                                    Thomas.

                                Justice dissenting: Stevens.

1100. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
                    Ohio's prohibition on the distribution of anonymous 
            campaign literature abridges the freedom of speech. The law, 
            aimed at speech designed to influence voters in an election, 
            is a limitation on political expression subject to exacting 
            scrutiny. Neither of the interests asserted by Ohio 
            justifies the limitation.

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

                                Justice concurring specially: Thomas.

                                Justices dissenting: Scalia, and Chief 
                                    Justice Rehnquist.

1101. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
                    An amendment to the Arkansas Constitution denying 
            ballot access to congressional candidates who have already 
            served three terms in the House of Representatives or two 
            terms in the Senate is invalid as conflicting with the 
            qualifications for office set forth in Article I of the U.S. 
            Constitution, (specifying age, duration of U.S. citizenship, 
            and state inhabitancy requirements). Article I sets the 
            exclusive qualifications for a United States Representative 
            or Senator.

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

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

1102. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995).
                    Oklahoma may not impose its motor fuels excise tax 
            upon fuel sold by Chickasaw Nation retail stores on tribal 
            trust land. The legal incidence of the motor fuels tax 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, 515 U.S. 557 (1995).
                    Application of Massachusetts' public accommodations 
            law to require the private organizers of a St. Patrick's Day 
            parade to allow participation in the parade by a gay and 
            lesbian group wishing to proclaim its members' gay and 
            lesbian identity violates the First Amendment because it 
            compels parade organizers to include in the parade a message 
            they wish to exclude.

1104. Miller v. Johnson, 515 U.S. 900 (1995).
                    Georgia's congressional districting plan violates 
            the Equal Protection Clause. The district court's finding 
            that race was the predominant factor in drawing the 
            boundaries of the Eleventh District was not clearly 
            erroneous. The State did not meet its burden under strict 
            scrutiny review to demonstrate that its districting was 
            narrowly tailored to achieve a compelling interest.

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

                                Justices dissenting: Stevens Ginsburg, 
                                    Breyer, and Souter.

1105. Fulton Corp. v. Faulkner, 516 U.S. 325 (1996).
                    North Carolina's intangibles tax on a fraction of 
            the value of corporate stock owned by North Carolina 
            residents inversely proportional to the corporation's 
            exposure to the State's income tax, violates the ``dormant'' 
            Commerce Clause. The tax facially discriminates against 
            interstate commerce, and is not a ``compensatory tax'' 
            designed to make interstate commerce bear a burden already 
            borne by intrastate commerce.

1106. Barnett Bank v. Nelson, 517 U.S. 25 (1996).
                    A federal law empowering national banks in small 
            towns to sell insurance (12 U.S.C. Sec. 92) preempts a 
            Florida law prohibiting banks from dealing in insurance. The 
            federal law contains no explicit statement of preemption, 
            but preemption is implicit because the state law stands as 
            an obstacle to the accomplishment of one of the federal 
            law's purposes.

1107. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
                    Rhode Island's statutory prohibition against 
            advertisements that provide the public with accurate 
            information about retail prices of alcoholic beverages 
            abridges freedom of speech protected by the First Amendment, 
            and is not shielded from constitutional scrutiny by the 
            Twenty-first Amendment. There is not a ``reasonable fit'' 
            between the blanket prohibition and the State's goal of 
            reducing alcohol consumption.

                                Justices concurring: Stevens, Scalia (in 
                                    part), Kennedy (in part), Souter (in 
                                    part), Thomas (in part), and 
                                    Ginsburg (in part).

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

1108. Romer v. Evans, 517 U.S. 620 (1996).
                    Amendment 2 to the Colorado Constitution, which 
            prohibits all legislative, executive, or judicial action at 
            any level of state or local government if that action is 
            designed to protect homosexuals, violates the Equal 
            Protection Clause of the Fourteenth Amendment. The 
            amendment, adopted by statewide referendum in 1992, does not 
            bear a rational relationship to a legitimate governmental 
            purpose.

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

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

1109. Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996).
                    A Montana law declaring an arbitration clause 
            unenforceable unless notice that the contract is subject to 
            arbitration appears in underlined capital letters on the 
            first page of the contract is preempted by the Federal 
            Arbitration Act.

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

                                Justice dissenting: Thomas.

1110. Shaw v. Hunt, 517 U.S. 899 (1996).
                    North Carolina's congressional districting law, 
            containing the racially gerrymandered 12th Congressional 
            District as well as another majority-black district, 
            violates the Equal Protection Clause because, under strict 
            scrutiny applicable to racial classifications, creation of 
            District 12 was not narrowly tailored to serve a compelling 
            state interest. Creation of District 12 was not necessary to 
            comply with either section 2 or section 5 of the Voting 
            Rights Act, and the lower court found that the redistricting 
            plan was not actually aimed at ameliorating past 
            discrimination.

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

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

1111. Bush v. Vera, 517 U.S. 952 (1996).
                    Three congressional districts created by Texas law 
            constitute racial gerrymanders that are unconstitutional 
            under the Equal Protection Clause. The district court 
            correctly held that race predominated over legitimate 
            districting considerations, including incumbency, and 
            consequently strict scrutiny applies. None of the three 
            districts is narrowly tailored to serve a compelling state 
            interest.

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

                                Justices concurring specially: O'Connor, 
                                    Kennedy, Thomas, and Scalia.

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

1112. United States v. Virginia, 518 U.S. 515 (1996).
                    Virginia's exclusion of women from the educational 
            opportunities provided by Virginia Military Institute denies 
            to women the equal protection of the laws. A state must 
            demonstrate ``exceedingly persuasive justification'' for 
            gender discrimination, and Virginia has failed to do so in 
            this case.

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

                                Justice dissenting: Scalia.

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

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

                                Justice concurring specially: Kennedy.

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

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

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

                                Justices concurring specially: Thomas, 
                                    and Scalia.

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

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

                                Justice dissenting: Chief Justice 
                                    Rehnquist.

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

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

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

1117. Foster v. Love, 118 S. Ct. 464 (1997).
                    A Louisiana statute that provides for an ``open 
            primary'' in October for election of Members of Congress and 
            that provides that any candidate receiving a majority of the 
            vote in that primary ``is elected,'' conflicts with the 
            federal law, 2 U.S.C. Sec. Sec. 1 and 7, that provides for a 
            uniform federal election day in November, and is void to the 
            extent of conflict. ``[A] contested selection of candidates 
            for a congressional office that is concluded as a matter of 
            law before the federal election day . . . clearly violates 
            Sec. 7.''

1118. Lunding v. New York Tax Appeals Tribunal, 118 S. Ct. 766 (1998).
                    A New York law that effectively denies only 
            nonresident taxpayers an income tax deduction for alimony 
            paid violates the Privileges and Immunities Clause of Art. 
            IV, Sec. 2. New York did not adequately justify its failure 
            to treat resident and nonresident taxpayers with substantial 
            equality.

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

                                Justices dissenting: Ginsburg, Rehnquist 
                                    and Kennedy.
                    ORDINANCES HELD UNCONSTITUTIONAL

125. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
                    Cincinnati's refusal, pursuant to an ordinance 
            prohibiting distribution of commercial handbills on public 
            property, to allow the distribution of commercial 
            publications through freestanding newsracks located on 
            public property, while at the same time allowing similar 
            distribution of newspapers and other noncommercial 
            publications, violates the First Amendment.

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

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

126. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 
        (1993).
                    Hialeah, Florida ordinances banning the killing of 
            animals in a ritual sacrifice are unconstitutional as 
            infringing the free exercise of religion by members of the 
            Santeria religion.

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

                                Justices concurring specially: Blackmun 
                                    and O'Connor.

127. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).
                    Clarkstown, New York ``flow control'' ordinance, 
            which requires all solid waste within the town to be 
            processed at a designated transfer station before leaving 
            the municipality, discriminates against interstate commerce 
            and is invalid under the Commerce Clause.

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

                                Justice concurring specially: O'Connor.

                                Justices dissenting: Souter, Blackmun, 
                                    and Chief Justice Rehnquist.

128. City of Ladue v. Gilleo, 512 U.S. 43 (1994).
                    An ordinance of the City of Ladue, Missouri, which 
            prohibits all signs but makes exceptions for several narrow 
            categories, violates the First Amendment by prohibiting a 
            resident from placing in the window of her home a sign 
            containing a political message. By prohibiting residential 
            signs that carry political, religious, or personal messages, 
            the ordinance forecloses ``a venerable means of 
            communication that is both unique and important.''
        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, 514     United States v. Bramblett, 
        U.S. 695 (1995).                  348 U.S. 503 (1955).
*   208.Adarand Constructors, Inc. v.     Metro Broadcasting, Inc. v. 
        Pena, 515 U.S. 200 (1995).        FCC, 497 U.S. 547 (1990);
                                          Fullilove v. Klutznick, 448 
                                          U.S. 448 (1990) (in part).
*   209.United States v. Gaudin, 515      Sinclair v. United States, 279 
        U.S. 506 (1995).                  U.S. 263 (1929).
*   210.Fulton Corp. v. Faulkner, 516     Darnell v. Indiana, 226 U.S. 
        U.S. 325 (1996).                  390 (1912).
*   211.Seminole Tribe of Florida v.      Pennsylvania v. Union Gas Co., 
        Florida, 517 U.S. 44 (1996).      491 U.S. 1 (1989).
*   212.44 Liquormart, Inc. v. Rhode      California v. LaRue, 409 U.S. 
        Island, 517 U.S. 484 (1996).      109 (1972) (in part);
                                          New York State Liquor Auth. v. 
                                          Bellanca, 452 U.S. 714 (1981) 
                                          (in part);
                                          City of Newport v. Iacobucci, 
                                          479 U.S. 92 (1986) (in part).
*   213.Agostini v. Felton, 521 U.S.      Aguilar v. Felton, 473 U.S. 
        203 (1997).                       402 (1985);
                                          Grand Rapids School Dist. v. 
                                          Ball, 473 U.S. 373 (1985) (in 
                                          part).
*   214.State Oil Co. v. Khan, 118 S.     Albrecht v. Herald Co., 390 
        Ct. 275 (1997).                   U.S. 145 (1968).
*   215.Hudson v. United States, 118      United States v. Halper, 490 
        S. Ct. 488 (1997).                U.S. 435 (1989).
*   216.Hohn v. United States, 118 S.     House v. Mayo, 324 U.S. 42 
        Ct. 1969 (1998).                  (1945).
                             TABLE OF CASES

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).... 54-56, 109, 
                                                                120, 127
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).................. 29
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).... 31, 103, 127
Agostini v. Felton, 521 U.S. 203 (1997)................. 31, 41, 42, 127
Aguilar v. Felton, 473 U.S. 402 (1985).......................... 42, 127
Albrecht v. Herald Co., 390 U.S. 145 (1968)......................... 127
Albright v. Oliver, 510 U.S. 266 (1994)............................. 100
Alexander v. United States, 509 U.S. 544 (1993).................. 48, 58
Allen v. Wright, 468 U.S. 737 (1984)................................. 26
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995)......... 7, 13
Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998)...... 74, 101
American Airlines v. Wolens, 513 U.S. 219 (1995)................ 11, 118
Arave v. Creech, 507 U.S. 463 (1993)................................. 88
Arizona v. Evans, 514 U.S. 1 (1995).................................. 70
Arizonans For Official English v. Arizona, 520 U.S. 43 (1997)........ 30
Arkansas Educational Television Comm'n v. Forbes, 118 S. Ct. 1633 
 (1998).............................................................. 60
Associated Industries v. Lohman, 511 U.S. 641 (1994)................ 117
Austin v. United States, 509 U.S. 602 (1993)......................... 87
Babbitt v. Youpee, 519 U.S. 234 (1997)...................... 80, 81, 113
Baldasar v. Illinois, 446 U.S. 222 (1980)........................... 127
Barclays Bank v. Franchise Tax Bd. of California, 512 U.S. 298 
 (1994).............................................................. 10
Barnett Bank v. Nelson, 517 U.S. 25 (1996)...................... 13, 120
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)................... 55
Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999).................... 25
Bennett v. Spear, 520 U.S. 154 (1997)............................ 27, 29
Bennis v. Michigan, 516 U.S. 442 (1996).............................. 97
Blodgett v. Holden, 275 U.S. 142 (1927).............................. 77
BMW v. Gore, 517 U.S. 559 (1996)..................................... 99
Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996)........... 49, 50
Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 
 (1994)................................................. 41, 42, 45, 118
Boddie v. Connecticut, 401 U.S. 371 (1971).......................... 106
Boggs v. Boggs, 520 U.S. 833 (1997).............................. 11, 13
Bousley v. Brooks, 523 U.S. 614 (1998)........................... 30, 34
Breard v. Greene, 118 S. Ct. 1352 (1998)............................. 93
Brecht v. Abrahamson, 507 U.S. 619 (1993)............................ 75
Buchanan v. Angelone, 118 S. Ct. 757 (1998).......................... 88
Bush v. Vera, 517 U.S. 952 (1996).............................. 105, 121
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958)............ 33
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994)... 7, 10, 
                                                                     125
California Dep't of Corrections v. Morales, 514 U.S. 499 (1995)...... 16
California Div. of Labor Stds. Enforcement v. Dillingham Constr., 
 Inc., 519 U.S. 316 (1997)....................................... 11, 13
California v. Deep Sea Research, Inc., 118 S. Ct. 1464 (1998)........ 93
California v. LaRue, 409 U.S. 109 (1972)....................... 109, 127
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).............. 15
Campbell v. Louisiana, 523 U.S. 392 (1998)...................... 27, 103
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 
 (1997)................................................... 7, 9, 16, 122
Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691 (1984)........... 109
Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (1995).... 42, 44, 60
Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993)...... 29
Carter v. Carter Coal Co., 298 U.S. 238 (1936)........................ 5
CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973)................ 47, 48
Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948).......... 8
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S. 
 557 (1980)....................................................... 53-56
Chandler v. Miller, 520 U.S. 305 (1997)......................... 70, 122
Chapman v. California, 386 U.S. 18 (1967)............................ 75
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 
 (1993)......................................................... 46, 125
City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)........... 62
City of Boerne v. Flores, 521 U.S. 507 (1997).............. 46, 106, 113
City of Chicago v. International College of Surgeons, 522 U.S. 156 
 (1998).............................................................. 32
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)
                                                                 53, 125
City of Ladue v. Gilleo, 512 U.S. 43 (1994)..................... 63, 125
City of Los Angeles v. Preferred Communications, 476 U.S. 488 
 (1986).............................................................. 56
City of Newport v. Iacobucci, 479 U.S. 92 (1986).................... 127
Clements v. Fashing, 457 U.S. 957 (1982)............................. 27
Clinton v. City of New York, 118 S. Ct. 2091 (1998)....... 2, 4, 27, 115
Clinton v. Jones, 520 U.S. 681 (1997)................................ 20
Coleman v. Miller, 307 U.S. 433 (1939)............................... 28
Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996)...... 31, 
                                                                 51, 111
Concrete Pipe & Products v. Construction Laborers Pension Trust, 
 508 U.S. 602 (1993)............................................. 78, 79
Cooper v. Oklahoma, 517 U.S. 348 (1996)............................. 101
County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 
 (1989).......................................................... 41, 42
County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998)................ 97
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993).......... 12
Dalton v. Specter, 511 U.S. 462 (1994)........................... 18, 19
Darnell v. Indiana, 226 U.S. 390 (1912)............................. 127
Davis v. United States, 512 U.S. 452 (1994).......................... 77
De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806 
 (1997).............................................................. 11
Delaware v. Prouse, 440 U.S. 648 (1979).............................. 69
Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727 (1996)... 57, 58, 
                                                                     113
Department of Agriculture v. Moreno, 413 U.S. 528 (1973)............ 105
Department of Taxation & Finance v. Milhelm Attea & Bros., 512 
 U.S. 61 (1994)...................................................... 14
Department of Treasury v. Fabe, 508 U.S. 491 (1993)............. 11, 117
District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 
 125 (1992).......................................................... 11
Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996)..... 13, 121
Dolan v. City of Tigard, 512 U.S. 374 (1994)......................... 79
Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996)..................... 36
Eastern Enterprises v. Apfel, 118 S.Ct. 2131 (1998)...... 16, 78-80, 115
Edenfield v. Fane, 507 U.S. 761 (1993)...................... 52, 53, 117
Edmond v. United States, 520 U.S. 651 (1997)..................... 18, 19
Employment Division v. Smith, 494 U.S. 872 (1990)............... 46, 106
Evans v. Romer, 854 P.2d 1270 (Colo. 1993).......................... 105
Ex parte Virginia, 100 U.S. 339 (1880)............................... 48
Farmer v. Brennan, 511 U.S. 825 (1994)............................... 89
FCC v. Beach Communications, 508 U.S. 307 (1993)................ 77, 102
FCC v. Pacifica Foundation, 438 U.S. 726 (1978).................. 57, 59
FDIC v. Meyer, 510 U.S. 471 (1994)................................... 32
FEC v. Akins, 524 U.S. 11 (1998).............................. 25-27, 29
Felker v. Turpin, 518 U.S. 651 (1996)........................ 24, 33, 35
Feltner v. Columbia Pictures Television, 118 S. Ct. 1279 (1998)..... 85, 
                                                                     115
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)........................... 94
Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)............ 52, 56
Foster v. Love, 118 S. Ct. 464 (1997)............................... 123
Foucha v. Lousiana, 504 U.S. 71 (1992)............................... 98
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995).................... 13
Frisby v. Schultz, 487 U.S. 474 (1988)............................... 61
Fullilove v. Klutznick, 448 U.S. 448 (1990).................... 103, 127
Fulton Corp. v. Faulkner, 516 U.S. 325 (1996)............ 8, 9, 120, 127
Furman v. Georgia, 408 U.S. 238 (1972)................................ 1
Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967)............. 29
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996).... 33, 85
General Motors Corp. v. Tracy, 519 U.S. 278 (1997).................... 9
Gilbert v. Homar, 520 U.S. 924 (1997)............................... 100
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)....... 48
Goldberg v. Sweet, 488 U.S. 252 (1989)................................ 8
Gooding v. United States, 416 U.S. 430 (1974)........................ 67
Grady v. Corbin, 495 U.S. 508 (1990)............................ 75, 127
Grand Rapids School District v. Ball, 473 U.S. 373 (1985)....... 42, 127
Gray v. Maryland, 118 S. Ct. 1151 (1998)............................. 84
Gray v. Netherland, 518 U.S. 152 (1996).......................... 30, 34
Green v. French, 143 F.3d 865 (4th Cir. 1998)........................ 36
Griffin v. Illinois, 351 U.S. 12 (1956)............................. 122
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995)........ 32
Guaranty Trust Co. v. York, 326 U.S. 99 (1945)....................... 33
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)................ 20
Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998)....................... 25
Hagen v. Utah, 510 U.S. 399 (1994)................................... 14
Hall v. Washington, 106 F.3d 742 (7th Cir. 1997)..................... 36
Hans v. Louisiana, 134 U.S. 1 (1890)................................. 94
Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993)......... 30, 31
Harris v. Alabama, 513 U.S. 504 (1995)............................... 88
Heiner v. Donnan, 285 U.S. 312 (1932)................................ 77
Helling v. McKinney, 509 U.S. 25 (1993).............................. 89
Herrera v. Collins, 506 U.S. 390 (1993).......................... 34, 89
Hetzel v. Prince William County, 118 S. Ct. 1210 (1998).............. 85
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)......................... 65
Hill v. Lockhart, 474 U.S. 52 (1985)................................. 84
Hodel v. Irving, 481 U.S. 704 (1987)........................ 80, 81, 113
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 
 (1981).............................................................. 82
Hohn v. United States, 118 S.Ct. 1969 (1998)................ 31, 35, 127
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994)................... 99, 118
Hopkins v. Reeves, 118 S. Ct. 1895 (1998)............................ 88
House v. Mayo, 324 U.S. 42 (1945)................................... 127
Hubbard v. United States, 514 U.S. 695 (1995)....................... 127
Hudson v. United States, 118 S. Ct. 488 (1997)...................... 127
Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995)..... 49, 56, 62, 
                                                                     119
Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994)............ 52
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997).................... 95
In re Winship, 397 U.S. 358 (1970)................................... 83
In re Young, 141 F.3d 854 (8th Cir. 1998)............................ 47
International Union, UMW v. Bagwell, 512 U.S. 821 (1994)......... 24, 83
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60 (1993).... 7, 10, 
                                                                      16
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)................. 103
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 
 510 U.S. 86 (1993).................................................. 11
Johnson v. Texas, 509 U.S. 350 (1993)................................ 88
Jones v. United States, 357 U.S. 493 (1958).......................... 67
Kansas v. Hendricks, 521 U.S. 346 (1997)......................... 73, 98
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 
 (1987).............................................................. 82
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).............. 32
Kotteakos v. United States, 328 U.S. 750 (1946)...................... 75
Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993)
                                                                  44, 60
Lambrix v. Singletary, 520 U.S. 518 (1997)....................... 30, 34
Leathers v. Medlock, 499 U.S. 439 (1991)............................. 57
Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995)......... 48
Lee v. Weisman, 505 U.S. 577 (1992).................................. 41
Lewis v. Casey, 518 U.S. 343 (1996)............................. 25, 102
Lewis v. United States, 518 U.S. 322 (1996).......................... 83
Linda R. S. v. Richard D., 410 U.S. 614 (1973)....................... 26
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)......................... 36
Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977)....... 55
Livadas v. Bradshaw, 512 U.S. 107 (1994)............................. 14
Lockhart v. Fretwell, 506 U.S. 364 (1993)............................ 84
Loving v. United States, 517 U.S. 748 (1996).................. 1, 15, 17
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)........... 29
Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998)... 37, 123
Lynce v. Mathis, 519 U.S. 433 (1997)................................ 122
Lynch v. Donnelly, 465 U.S. 668 (1984)............................... 41
M.L.B. v. S.L.J., 519 U.S. 102 (1996).......................... 106, 122
MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986) 
                                                                      81
Madsen v. Women's Health Center, 512 U.S. 753 (1994)................. 60
Mapp v. Ohio, 367 U.S. 643 (1961).................................... 76
Markman v. Westview Instruments, Inc., 517 U.S. 348 (1996)....... 14, 85
Maryland v. Wilson, 519 U.S. 408 (1997).............................. 68
Mayer v. Chicago, 404 U.S. 189 (1971)............................... 106
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).......... 62, 119
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)......................... 12
Meek v. Pittenger, 421 U.S. 349 (1975)............................... 42
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)........... 103, 127
Michigan v. Tucker, 417 U.S. 433 (1974).............................. 76
Miller v. Albright, 118 S. Ct. 1428 (1998).......................... 104
Miller v. Johnson, 515 U.S. 900 (1995)......................... 104, 120
Minnesota v. Dickerson, 508 U.S. 366 (1993).......................... 68
Mississippi v. Louisiana, 506 U.S. 73 (1992)......................... 32
Monge v. California, 118 S. Ct. 2246 (1998)...................... 74, 75
Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (1994).... 73, 118
Montana v. Egelhoff, 518 U.S. 37 (1996)............................. 101
Murray v. Carrier, 477 U.S. 478 (1986)............................... 35
National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 
 U.S. 479 (1998)..................................................... 28
National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998) 
                                                                      51
New York State Conf. of Blue Cross & Blue Shield Plans v. 
 Travelers Ins. Co., 514 U.S. 645 (1995)............................. 11
New York State Liquor Auth. v. Bellanca, 452 U.S.714 (1981)......... 127
New York v. United States, 505 U.S. 144 (1992).................. 39, 114
Newsweek, Inc. v. Florida Dep't of Revenue, 118 S. Ct. 904 (1998) 
                                                                      97
Nichols v. Coolidge, 274 U.S. 531 (1927)............................. 77
Nichols v. United States, 511 U.S. 738 (1994)................... 84, 127
Nixon v. United States, 506 U.S. 224 (1993).......................... 31
Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of 
 Jacksonville, 508 U.S. 656 (1993)........................... 26, 27, 30
O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998)....................... 36
O'Dell v. Netherland, 521 U.S. 151 (1997)........................ 30, 34
O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996)
                                                                      49
O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994)........................ 33
Ohio Adult Parole Auth. v. Woodard, 118 S. Ct. 1244 (1998)...... 99, 102
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998).............. 29
Ohio v. Robinette, 519 U.S. 33 (1996)................................ 69
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)............. 52, 55
Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995).... 14, 119
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175 (1995) 
                                                                7, 8, 31
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993).... 14, 117
One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) 
                                                                      73
Oregon Waste Systems v. Department of Envtl. Quality, 511 U.S. 93 
 (1994)...................................................... 8, 10, 117
Ornelas v. United States, 517 U.S. 690 (1996)........................ 67
Parke v. Raley, 506 U.S. 20 (1992).................................. 101
Peacock v. Thomas, 516 U.S. 349 (1996)............................... 32
Pennell v. City of San Jose, 485 U.S. 1 (1988)................... 79, 82
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)...... 94
Pennsylvania Bd. of Probation and Parole v. Scott, 118 S. Ct. 2014 
 (1998).............................................................. 71
Pennsylvania v. Labron, 518 U.S. 938 (1996).......................... 69
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)........... 94, 112, 127
Phillips v. Washington Legal Foundation, 118 S. Ct. 1925 (1998)...... 81
Planned Parenthood v. Casey, 505 U.S. 833 (1992)..................... 98
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)............ 23, 112
Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996)........................ 25
Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986)
                                                                      54
Powers v. Ohio, 499 U.S. 400 (1991).................................. 27
Printz v. United States, 521 U.S. 898 (1997)......... 5, 39, 65, 91, 114
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)................ 34
Raines v. Byrd, 521 U.S. 811 (1997).............................. 27, 28
Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) 
                                                                      27
Regents of the University of California v. Doe, 519 U.S. 425 
 (1997).............................................................. 94
Reich v. Collins, 513 U.S. 106 (1994)................................ 97
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)..... 59, 114
Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993)....... 27, 29
Reno v. Flores, 507 U.S. 292 (1993).................................. 14
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995)................ 31
Richards v. Jefferson County, 517 U.S. 793 (1996)................... 100
Richards v. Wisconsin, 520 U.S. 385 (1997)........................... 68
Richmond v. Lewis, 506 U.S. 40 (1992)................................ 88
Romano v. Oklahoma, 512 U.S. 1 (1994)................................ 88
Romer v. Evans, 517 U.S. 620 (1996)............................ 105, 120
Rosenberger v. University of Virginia, 515 U.S. 819 (1995)... 41, 44, 60
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).......... 52-54, 56, 111
Rutledge v. United States, 517 U.S. 292 (1996)....................... 74
Ryder v. United States, 515 U.S. 177 (1995)...................... 19, 31
Sale v. Haitian Centers Council, 509 U.S. 155 (1993)................. 14
Sandin v. Conner, 515 U.S. 472 (1995)............................... 100
Santosky v. Kramer, 455 U.S. 745 (1982)............................. 106
Sawyer v. Whitney, 505 U.S. 333 (1995)............................... 35
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 
 (1997).............................................................. 61
Schiro v. Farley, 510 U.S. 222 (1994)................................ 73
Schlup v. Delo, 513 U.S. 298 (1995).................................. 35
Scott v. Illinois, 440 U.S. 367 (1979)............................... 84
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).... 31, 93, 94, 
                                                                112, 127
Shaw v. Hunt, 517 U.S. 899 (1996).............................. 105, 121
Shaw v. Reno, 509 U.S. 630 (1993)................................... 105
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) 
                                                                      26
Sinclair v. United States, 279 U.S. 263 (1929)...................... 127
Smiley v. Citibank, 517 U.S. 735 (1996).............................. 11
Soldal v. Cook County, 506 U.S. 56 (1992)............................ 67
South Dakota v. Bourland, 508 U.S. 679 (1993)........................ 14
Spencer v. Kemna, 523 U.S. 1 (1998).................................. 30
Stansbury v. California, 511 U.S. 318 (1994)......................... 76
State Oil Co. v. Khan, 522 U.S. 3 (1997)........................ 31, 127
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
                                                                      26
Stone v. Powell, 428 U.S. 465 (1976)............................. 76, 77
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997)........ 81
Sullivan v. Louisiana, 508 U.S. 275 (1993)...................... 83, 101
Taylor v. United States, 143 F.3d 1178 (9th Cir. 1998)............... 25
Texas v. United States, 523 U.S. 296 (1998).......................... 29
Timmons v. Twin City Area New Party, 520 U.S. 351 (1997)............. 50
Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967)............. 29
Torcaso v. Watkins, 367 U.S. 488 (1961).............................. 42
Tuggle v. Netherland, 516 U.S. 10 (1995)............................. 89
Tuilaepa v. California, 512 U.S. 967 (1994).......................... 88
Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)........... 56, 57
Turner Broadcasting System v. FCC, 520 U.S. 180 (1997)............... 57
Turner v. Fouche, 396 U.S. 346 (1970)................................ 27
TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993)........... 99
U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 
 (1994).............................................................. 29
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)....... 2, 3, 119
United States v. Bajakajian, 118 S. Ct. 2028 (1998).................. 87
United States v. Balsys, 118 S. Ct. 2218 (1998)...................... 76
United States v. Bramblett, 348 U.S. 503 (1955)..................... 127
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)................. 69
United States v. Cabrales, 118 S. Ct. 1772 (1998).................... 84
United States v. Carlton, 512 U.S. 26 (1994)......................... 77
United States v. Dixon, 509 U.S. 688 (1993)..................... 75, 127
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)... 52-54, 56
United States v. Gaudin, 515 U.S. 506 (1995).................... 83, 127
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).................. 65
United States v. Halper, 490 U.S. 435 (1989)........................ 127
United States v. Hemme, 476 U.S. 558 (1986).......................... 77
United States v. IBM, 517 U.S. 843 (1996)............... 15, 16, 31, 111
United States v. Jacobsen, 466 U.S. 109 (1984)....................... 67
United States v. James Daniel Good Real Property, 510 U.S. 43 
 (1993).............................................................. 99
United States v. Lanier, 520 U.S. 259 (1997)........................ 100
United States v. Lopez, 514 U.S. 549 (1995)............... 5, 7, 91, 112
United States v. National Treasury Employees Union, 513 U.S. 454 
 (1995)..................................................... 19, 49, 112
United States v. O'Brien, 391 U.S. 367 (1968)........................ 57
United States v. One Assortment of 89 Firearms, 465 U.S. 354 
 (1984).............................................................. 73
United States v. Padilla, 508 U.S. 77 (1993)......................... 71
United States v. Ramirez, 118 S. Ct. 992 (1998).................. 67, 68
United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)........ 82
United States v. United States Shoe Corp., 523 U.S. 360 (1998)...... 15, 
                                                                     114
United States v. Ursery, 518 U.S. 267 (1996)......................... 73
United States v. Virginia, 518 U.S. 515 (1996)................. 104, 121
United States v. Watts, 519 U.S. 148 (1997).......................... 74
United States v. Winstar Corp., 518 U.S. 839 (1996).................. 78
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997).............. 65
Untermyer v. Anderson, 276 U.S. 440 (1928)........................... 77
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)................ 78
Vacco v. Quill, 521 U.S. 793 (1997)............................. 98, 102
Various Items of Personal Property v. United States, 282 U.S. 577 
 (1931).............................................................. 73
Vernonia School Dist. v. Acton, 515 U.S. 646 (1995).............. 69, 70
Victor v. Nebraska, 511 U.S. 1 (1994)............................... 101
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 
 Council, 425 U.S. 748 (1976)........................................ 55
Voinovich v. Quilter, 507 U.S. 146 (1993)........................... 104
Warth v. Seldin, 422 U.S. 490 (1975)................................. 26
Washington v. Glucksberg, 521 U.S. 702 (1997)........................ 98
Waters v. Churchill, 511 U.S. 661 (1994)............................. 50
Weiss v. United States, 510 U.S. 163 (1994).......................... 19
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)........ 8, 9, 118
Whren v. United States, 517 U.S. 806 (1996).......................... 69
Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 
 U.S. 172 (1985)..................................................... 81
Wilson v. Arkansas, 514 U.S. 927 (1995).............................. 68
Wilton v. Seven Falls Co., 515 U.S. 277 (1995)....................... 29
Wisconsin Dep't of Corrections v. Schacht, 118 S. Ct. 2047 (1998) 
                                                                      95
Wisconsin v. City of New York, 517 U.S. 1 (1996)...................... 4
Wisconsin v. Mitchell, 508 U.S. 476 (1993)....................... 48, 58
Withrow v. Williams, 507 U.S. 680 (1993)......................... 76, 77
Witte v. United States, 515 U.S. 389 (1995)...................... 74, 75
Witters v. Washington Department of Social Services, 474 U.S. 481 
 (1986).............................................................. 43
Wood v. Bartholomew, 516 U.S. 1 (1995).............................. 101
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996)................... 32
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)...... 55
Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993)..... 41-43
                                  INDEX

Abortion
  protests, injunctions, First Amendment protections................. 60
Admiralty
  maritime torts..................................................... 32
Advertising
  compelled disclosure of information................................ 55
Affirmative action
  federal legislation subject to strict scrutiny.................... 103
Appointments Clause
  definition of ``inferior officer''................................. 18
  military judges.................................................... 19
Association, right of
  parade organizers, control of parade message....................... 49
Cable television
  First Amendment protections........................................ 56
  indecent programming............................................... 58
Campaign finance
  independent party expenditures, First Amendment.................... 51
Census
  decision not to make statistical adjustment......................... 4
Civil commitment
  not punishment for double jeopardy purposes........................ 73
  sexual predators with mental abnormality or personality disorder
                                                                      97
Commerce Clause
  discriminatory local solid waste ``flow control'' law.............. 10
  discriminatory state taxation.................................... 8, 9
  discriminatory state taxation, charitable exemption................. 9
  state taxation, apportionment, multinational corporation........... 11
Commerce power
  anti-commandeering restriction................................. 39, 91
  invalidity of Gun-Free School Zones Act............................. 5
Congress
  Members, standing to sue........................................... 27
  qualifications of Members, term limits.............................. 2
Congressional districting
  racial gerrymandering, bizarrely shaped districts................. 104
Contempt
  distinction between civil and criminal contempt.................... 24
Counsel, assistance of
  ineffective counsel, grounds for new trial......................... 84
Death penalty
  Antiterrorism and Effective Death Penalty Act of 1996.............. 35
  military justice, standards promulgated by President................ 1
  permissible jury instructions...................................... 88
Delegation
  Line Item Veto Act, invalidity...................................... 4
  military justice, President's authority as Commander-in-Chief... 1, 17
Diversity of Citizenship
  federal court cases, choice of law................................. 33
Drug testing
  candidates for state office........................................ 70
  public high school athletes........................................ 69
Due process
  retroactive legislation............................................ 78
  retroactive taxation............................................... 77
  solitary confinement of prisoners................................. 100
Ex Post Facto Clause
  decreasing frequency of parole-suitability hearings................ 16
Excessive fines
  civil forfeiture................................................... 87
  reporting violation, currency export............................... 87
Export Clause
  Harbor Maintenance Tax............................................. 15
False statements
  federal statute, materiality as issue for jury..................... 83
Federalism
  anti-commandeering rule............................................ 39
  Gun-Free School Zones Act, invalidity.............................. 91
  principles reflected in commerce power analysis..................... 6
  State sovereign immunity, suits in federal court................... 94
First Amendment
  protected expression, state authority under 21st Amendment........ 109
  state action requirement........................................... 47
Forfeiture
  innocent joint owner, car used in prostitution..................... 97
Government contractors
  free speech rights................................................. 49
Grants
  decency standard, funding for the arts............................. 51
Gun Free School Zones Act
  invalid exercise of commerce power.............................. 5, 91
Guns
  Brady Act, background checks, state enforcement................ 39, 91
  regulation, Second Amendment implications.......................... 65
Habeas corpus
  Antiterrorism and Effective Death Penalty Act of 1996.............. 35
  claim of innocence, capital cases.................................. 89
  statutory limitations.......................................... 33, 34
Harbor Maintenance Tax
  constitutionality.................................................. 15
Homosexuals
  Colorado constitutional amendment limiting local laws concerning
                                                                     105
Honoraria ban
  government employees, free speech rights........................... 50
Immunity from suit
  President, conduct prior to assuming office........................ 20
Impeachment
  judicial review of Senate trial, ``political question''............ 21
Import-Export Clause
  federal excise tax on insurance for exported goods................. 16
Indian Gaming Regulatory Act
  invalidity, abrogation of state immunity in federal court.......... 94
Indigents
  trial transcript necessary for appeal in parental rights case..... 106
Injunctions
  public demonstrations, First Amendment limitations................. 60
Judicial review
  preclusion of review, military base closures....................... 18
  Westfall Act, Federal Tort Claims Act.............................. 20
Jury trial
  civil, when required............................................... 85
  criminal, mixed questions of law and fact.......................... 83
  when required, multiple petty offenses............................. 83
Limitations period
  retroactive change, final judgments, unconstitutionality........... 23
Line Item Veto Act
  as delegation of power.............................................. 2
  constitutionality, presentment clause............................... 4
  standing of Members of Congress to challenge....................... 27
Military justice
  appointment of military judges..................................... 19
  death penalty, President's promulgation of standards................ 1
Miranda warning
  waiver of rights................................................... 77
Mootness
  appropriateness of vacatur as remedy............................... 29
Newsracks
  use on public property, ban limited to commercial materials........ 53
Parades
  organizers, right to control parade message........................ 62
Political question
  impeachment proceedings, judicial review....................... 21, 31
Preemption
  ERISA, express preemption language, conflict analysis.............. 13
  Medical Device Amendments.......................................... 12
Presentment Clause
  Line Item Veto Act, violation of clause............................. 5
President
  immunity from suit, conduct prior to assuming office............... 20
Press, freedom of
  cable television................................................... 56
Prisons
  Prison Litigation Reform Act, restrictions on litigation........... 25
Privileges and immunities
  disparate state taxation of residents and nonresidents............. 37
Public television
  candidate debates, access, First Amendment......................... 60
Punitive damages
  amount, due process constraints.................................... 99
Racial discrimination
  affirmative action, federal legislation, strict scrutiny.......... 103
Racial gerrymandering
  ``bizarre'' shape of congressional districts...................... 104
Religion: Establishment Clause
  equal access of religious groups to school property................ 43
  Lemon tests........................................................ 41
  public funding for sign-language interpreter in public schools 
                                                                      42
  religious displays on public property.............................. 44
  special school district for religious sect......................... 45
  test for validity.................................................. 42
Religion: Free Exercise
  animal sacrifice................................................... 46
Religious Freedom Restoration Act
  constitutionality............................................. 46, 106
Retroactivity
  Supreme Court ruling, cases still on direct review................. 30
Search and seizure
  ``knock and announce'' rule........................................ 68
  automobile stop, ordering passengers from car...................... 68
  definition of ``seizure''.......................................... 67
  drug testing of public high school athletes........................ 69
  frisk, ``plain touch'' seizure of contraband....................... 68
  traffic violation, pretextual stop................................. 69
Sentence enhancement
  not additional punishment for purposes of double jeopardy.......... 74
Separation of powers
  changed position of Justice Department............................. 17
  delegation to President in role as Commander-in-Chief............... 2
  legislative alteration of final judgments of courts................ 23
  presidential immunity from suit.................................... 20
Sex discrimination
  jury selection.................................................... 103
  military college.................................................. 104
Sexual predators
  civil commitment................................................... 97
Speech, commercial
  beer labels, display of alcohol content............................ 53
  cable television................................................... 56
  compelled disclosure in advertising................................ 55
  liquor ads, price information...................................... 54
  reasonable fit between ends and means of regulation................ 53
Speech, freedom of
  anonymous advocacy................................................. 62
  federal support for arts, decency standard......................... 51
  hate crimes, enhancement of criminal penalty....................... 58
  in-person solicitation............................................. 52
  independent government contractors............................. 49, 50
  parade organizers, right to control parade message................. 62
  public demonstrations, injunctions................................. 60
  residential signs.................................................. 63
  signs, use of utility poles........................................ 62
Standing to sue
  Members of Congress................................................ 27
  public contracts, challenge to affirmative action.................. 26
  redressability..................................................... 26
  statutory conferral, generalized grievance......................... 26
  suit by organization on behalf of members.......................... 26
Stare decisis
  conflicting views of Justices...................................... 31
States
  immunity in federal courts, congressional power to abrogate........ 93
  residual sovereignty in constitutional structure................... 39
Submerged lands
  Coeur d'Alene Tribe suit barred by Eleventh Amendment.............. 95
Taxation, Federal
  excise tax, import-export clause................................... 16
  Harbor Maintenance Tax, Export Clause.............................. 15
Taxation, State
  apportionment, multinational corporation, franchise tax............ 10
  discrimination against interstate commerce....................... 8, 9
  privileges and immunities, nonresident taxation.................... 37
Term limits
  Members of Congress, state-imposed limitations...................... 2
Twenty-first Amendment
  authority of states, regulation of expressive behavior............ 109
  prohibition against liquor price advertising not shielded by...... 109
Vacatur
  remedy for mootness, limitations................................... 29