Doesn't incorporation doctrine rely to some extent on the provisions of the
Bill of Rights being implicit in our nation's concept of ordered liberty and
thus encompassed within 14th amendment due process? Should we look to what
other nations consider to be implicit in the concept of ordered
Of course, to the extent that the provisions of the Bill of Rights
explicitly protect privacy interests against state governments, they do so
only through the 14th Amendment.
Mark Scarberry
Pepperdine
-Original Message-
From: Mark S Kende
To: [EMAIL PROTECTED]
Sent: 6/26/2003 6:03 PM
James Taranto (WSJ OpinionJournal) made this interesting comment today about
Georgia v. Ashcroft and principle vs. politics. I realize that he is using
politics in the low sense of party politics, not in Eric's higher sense of
political choices made by a council of elders, but I still thought this
- Original Message -
From: Scarberry, Mark mailto:[EMAIL PROTECTED]
To: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED]
Sent: Thursday, July 17, 2003 8:46 PM
Subject: Re: Membership in Disfavored Organization as Grounds for
Dismissa l as School ...
Disruption would likely result merely from parents
nent
of democracy, is certainly a matter of public concern, regardless of the
underlying subject matter. Consequently, we assume Melzer's activity is protected
and move to the next part of the Pickering test.
- Original Message -
From: Scarberry, Mark
[EMAIL PROTECTED]
To: [EMAI
thing.
By the way, if the tobacco assessment is permissible, could the government also
tax movie studios to fund an educational campaign against violent
entertainment?
At 01:50 PM 7/24/2003 -0400, Howard Wasserman wrote:
Scarberry, Mark wrote:
Government's
ability to speak in the public
With regard to my last post in response to Jack, let me add:
When the issue to be decided by a US court involves international law, as in
the maritime case from which Jack quotes, then decisions of foreign nations'
courts may be analogous to decisions of sister circuits. The foreign courts
are
Message]
From: Scarberry, Mark [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Date: 8/5/2003 8:49:49 AM
Subject: Re: Referring to Foreign Law
It hardly is surprising that US courts would consider respectfully
decisions
from other countries regarding belligerent and neutral rights. The law
of
war is one
Let me suggest John
Phillip Reid's 4 volume Constitutional History of the American
Revolution. I haven't read very much of it (yet), but interestingly it
portrays the colonies as being in an intractable dispute more with the British
parliament than with the king. Gross oversimplification:
Cal. Governor Gray Davis has signed Senate Bill 60, which is designed to
allow undocumented immigrants in California to obtain California drivers'
licenses. The bill's author (State Senator Gil Cedillo) has publicly stated
that one of the purposes of the bill is to allow undocumented immigrants
The idea that the City of Cookeville was being viewpoint neutral in this
case is indeed difficult to swallow. The viewpoint that Cookeville is a good
place for business is just that, a viewpoint. A refusal to link to websites
that suggest that the City government is corrupt, and presumably
S. Scarberry
Pepperdine University School of Law
-Original Message-
From: John Noble
[mailto:[EMAIL PROTECTED]
Sent: Monday, September 15, 2003
4:08 PM
To: [EMAIL PROTECTED]
Subject: Re: Ninth circuit and the
recall
At 3:18 PM -0700 9/15/03, Scarberry, Mark wrote:
I will now
-
From: Scarberry, Mark
To: [EMAIL PROTECTED]
Sent: Monday,
September 15, 2003 6:18 PM
Subject: Re: Ninth
circuit and the recall
Time most certainly is of
the essence. Once the recall qualified, Governor Davis decided to sign a bill
allowing undocumented immigrants
In response to Sandy and Gregg,
If "special interests" (e.g.,
the railroads in the early 1900s) have such control of a state that a gubernatorial
recall is needed, it is likely the special interests would also arrange for
election of a sympathetic Lt. Governor. After all, governors die
MSNBC is reporting not that the 9th
Cir. has granted en banc review, but that it has invited the parties to file
briefs on the topic of en banc review. Here are the headlines and the first
paragraph of the story, which does not bear out the headlines. I'm not
sure whether the recall
to
have the mandate issue immediately.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Scarberry, Mark
Sent: Thursday, September 18, 2003 5:24 PM
To: 'Discussion list for con law professors'
Subject: Indefinite stay of panel decision in recall case?
I sent
No, I don't think so, because the mandate has not issued (or effectively was
recalled). In the absence of issuance of the mandate, the panel's opinion
has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16,
the mandate is not to issue except on further order of the court (as I
Our moderator posted this analysis on his blog
(volokh.com) with respect to allegations that the Secret Service was making
anti-Bush demonstrators stay much farther from Presidential appearances than
pro-Bush demonstrators:
Viewpoint discrimination and
rallies: A few readers have argued
I saw a very similar quote on a news web site (MSNBC, I think) that omitted
any reference to the administrative branch. I don't know how reliable the
Yahoo site is from which the quote is taken, but it may not be an accurate
quote.
Mark S. Scarberry
Pepperdine University School of Law
to the
executive branch and the legislative branch. I suppose that means he
corrected his error faster than I corrected mine.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Scarberry, Mark
Sent: Wednesday, October 01, 2003 12:12 PM
To: [EMAIL PROTECTED
What I hear is that he cannot assume the office until the vote is certified.
That could take several weeks. See
http://www.ss.ca.gov/elections/2003_cert_timeline.htm.
Mark S. Scarberry
-Original Message-
From: Parry, John
To: [EMAIL PROTECTED]
Sent: 10/8/2003 6:21 AM
Subject: Arnold's
I believe he becomes governor when he is sworn in, which can happen as soon
as the vote is certified.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: John Nagle [mailto:[EMAIL PROTECTED]
Sent: Wednesday, October 08, 2003 8:05 AM
To: [EMAIL PROTECTED]
I have to disagree with part of John Parry's post. A ban on all religious
speech in the park would not simply be content discrimination. It would also
be viewpoint discrimination, as we learn from Lamb's Chapel and Good News
Club. Thus, even if the park were a nonpublic forum, so that reasonable
In support of Earl's point, see Doe v. Madison School Dist. No. 321, 177
F.3d 789 (9th Cir. 1999) (refusing to find taxpayer standing on behalf of
parent whose child had graduated from high school -- and thus finding that
case was moot -- where parent was challenging school district policy that
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