Digital Commons Network^™

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.

"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks

Faculty Scholarship

No abstract provided.

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Faculty Scholarship

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

Opinion Analysis: Bargaining In The Shadow Of Equitable Apportionment, Ryke Longest

Faculty Scholarship

No abstract provided.

Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez

Faculty Scholarship

No abstract provided.

Professor Greenawalt's Unfashionable Idea, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception.

In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would …

Coming Into The Anthropocene, Jedediah Purdy

Faculty Scholarship

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …

Reynolds Reconsidered, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

The Voting Rights Act (“VRA”), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today’s voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never …

Hunting And The Second Amendment, Joseph Blocher

Faculty Scholarship

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment “ain’t about hunting” and that, no matter their heritage and value, such activities are …

Brief Of Federal Courts Scholars As Amici Curiae In Support Of The Petitioner, Willaim Araiza, Howard M. Wasserman, Lawrence Sager, Stephen I. Vladeck, Ernest A. Young

Faculty Scholarship

No abstract provided.

New Approaches To Old Questions In Gun Scholarship, Joseph Blocher

Faculty Scholarship

No abstract provided.

Originalism As A Theory Of Legal Change, Stephen E. Sachs

Faculty Scholarship

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …

The Volk Of New Jersey? State Identity, Distinctiveness, And Political Culture In The American Federal System, Ernest A. Young

Faculty Scholarship

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

Federalism As A Constitutional Principle, Ernest A. Young

Faculty Scholarship

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and …

Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated "basic principles" of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter …

New Problems For Subsidized Speech, Joseph Blocher

Faculty Scholarship

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …

That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah Purdy

Faculty Scholarship

In the area of money in politics, change at the doctrinal level will follow only from change at the political level. The current doctrine is coherent, intelligible, and profoundly misplaced. Shifting it will take a movement.

Modern-Day Nullification: Marijuana And The Persistence Of Federalism In An Age Of Overlapping Regulatory Jurisdiction, Ernest A. Young

Faculty Scholarship

No abstract provided.

Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn

Faculty Scholarship

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and …

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Constitutionalism Outside The Courts, Ernest A. Young

Faculty Scholarship

This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and …