The Federalism Project

American Enterprise Institute

Click on cases noted with for details

Do Spending Clause Statutes Create Private Rights of Action?
Gonzaga v. Doe 
No. 01-679   

May Punitive Damages be Awarded in Private Suits brought under Spending Clause Statutes?
Barnes v. Gorman
No. 01Ė682   

details coming soon

The Hitchin' Post and Section 1983

Can a prisoner sue state prison officials for violating his civil rights--here, subjecting him to the seemingly cruel and unusual punishment of being shackled to a hitching post (not to mention the accompanying "prolonged thirst and taunting")--if the officials didn't know their conduct was illegal? Court precedent says no, so the Justices considered this: did the fellows in charge have warning, under law, to know this particular disciplinary method is off limits? Six justices sided with the Bush administration and ruled you bet: y'all should have known better.

Thomas, joined by Scalia and Rehnquist, says not so fast.  The "petitionerís specific allegations against respondents" is far from obvious. "What is 'obvious,' however, is that the Courtís explanation of how respondents violated the Eighth Amendment is woefully incomplete." 

Click here for Hope v Peltzer; click here for the SG's brief


Sovereign Immunity

Does a State Waive Sovereign Immunity when it  Removes a Case from State to Federal Court? 

Lapides v. Board of Regents of Georgia No. 01-298


Does Sovereign Immunity Bar Private Suits Against States Before Federal Agencies?
Federal Maritime Commission v. South Carolina State Ports Authority No. 01-46


Are Local Safety Ordinances Preempted by the Interstate Commerce Act?

City of Columbus v. Ours Garage & Wrecker Service No. 01-419  

Are State Patient Protection HMO Laws Preempted by Federal Statute?
Rush Prudential HMO v. Moran
No. 00-1021


First Amendment/Police Powers

Do Vouchers Violate the First Amendment?
Zelman v. Simmons-Harris,
No. 00-1751
Hanna Perkins v. Simmons-Harris, No. 00-1777
Taylor v. Simmons-Harris, No. 00-1779

Can States Restrict what Judicial Candidates Say on the Campaign Trail?
Party of Minnesota v. Kelly
No. 01-521


Are On-Line Porn Restrictions Legitimate Commercial Regulations?
Ashcroft v. ACLU 
No. 00-1293   

Surf's up, but Beware the Secondary Effects of those Bikinis
City of Los Angeles v. Alameda Books
No. 00-0799   

Virtually everyone agrees that cities can regulate "adult" merchants and entertainers if they have an adverse enough effect on the community.  Up for debate: how does a city legitimately prove these adverse effects--can it rely on partial evidence or does it need to produce a precise link between cause and effect?  According to the 9th Circuit, harmful impact on the locals must be specifically proven before a smut restriction passes First Amendment muster. Los Angeles failed to prove that adult entertainment establishments, clustered in one building, have unpleasant secondary effects; therefore, its prohibition of multiple sex shops under one roof (Municipal Code 12.70c) can not stand (click here for the decision). As Judge Michael Hawkins reminds, "deference to legislative decision making is not unbounded." 

The Supremes remind that deference to the 9th Circuit  is not unbounded, either. O'Connor, writing for a 5-4 Court, upheld the Los Angeles ordinance because it (1) is content neutral, (2) the city, in passing a content neutral regulation, need only show a link between suspect activity and harmful secondary effects--"it does not bear the burden of providing evidence that rules out every (other) theory." According to O'Connor,  local experimentation should be respected: "municipalities will, in general, have greater experience with and understanding of the secondary effects that follow certain protected speech than will the courts."

This may be the best the Court can do under the circumstances--Justice Kennedy, earlier this term, praised the themes animating "American Beauty" and "Traffic" (Ashcroft v. Free Speech Coalition)--but there is a more compelling option on the table.  As Scalia states in his concurrence, "the Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex." The First Amendment is not at risk when communities regulate conduct, or at least conduct devoid of meaningful expression.  


2003 Term

2002 Term

2000 Term


Selected issues are highlighted in selected cases; neither the list nor the summaries are intended to be comprehensive