"Coercion" and plea bargaining [long]

[David Bernstein]

In response to David Cruz's lengthy (and thoughtful) e-mail,

(1) I agree that O'Connor in Dole and elsewhere seems more concerned with
policing federalism than with more generally restraining the federal
government's power to impose unconstituitonal positions, but I the principle
articulated in Butler is wider-ranging, and properly so; the 10th Amendment
reminds us that the federal government is restrained both as to the states
and as to the people.

(2)  Putting the First Amendment issue aside, David's message raises the
interesting question: Could Congress use the commerce clause to pass a law
akin to California's Leonard Law directly banning private university speech
codes, regardless of whether the universities receive federal funding?  Lopez
suggests not, though we've yet to see it applied in a non-criminal context.
If the answer is no, then the coercion issue would arise if funding was
conditioned on adopted speech codes.

By the way, David and other Californians teaching at private schools, is
anyone planning to challenge the Leonard Law post-Dale?  The (unappealed
district court) Stanford decision was based on an interpretation of
expressive association that is now clearly been shown to be wrong.

David E. Bernstein
Associate Professor
George Mason University
School of Law
(703) 993-8089
Home Page: http://mason.gmu.edu/~dbernste
Only One Place of Redress Home Page:
http://mason.gmu.edu/~dbernste/Redress.html

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