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Articles 1 - 8 of 8
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Ready For Marriage? Evaluating The Supreme Court's Obergefell Arguments Like A Pro, Eric C. Christiansen
Ready For Marriage? Evaluating The Supreme Court's Obergefell Arguments Like A Pro, Eric C. Christiansen
Publications
Amateur constitutional law gurus, rejoice! Marriage equality advocates and marriage traditionalists, warm up your commenting keyboards! And, secret Supreme Court junkies, put on your “Notorious RBG” t-shirts and rehearse your favorite Justice Scalia quote! On Tuesday, the United States Supreme Court will hear two and a half hours of arguments on whether the U.S. Constitution permits states to exclude same-sex couples from the rights and responsibilities of marriage. The case, Obergefell v. Hodges, is the most eagerly anticipated case of the Court’s current term. And, unlike the last time this court faced the marriage issue, the Justices have very …
Government Speech And Political Courage, Helen Norton
Government Speech And Political Courage, Helen Norton
Publications
This short essay addresses Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which a divided Court upheld Texas's rejection of the Sons of Confederate Veterans' request for a specialty license plate that featured the Confederate flag. Although it agrees with the majority that specialty license plates can -- and often do -- reflect the government's own expression that the government should remain free to control without running afoul of the First Amendment, it argues that the Walker Court missed an important opportunity to refine its government speech doctrine. Not only has the Court yet to settle on a …
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Publications
How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation. In this Review, we press two main arguments. …
Outing Privacy, Scott Skinner-Thompson
Outing Privacy, Scott Skinner-Thompson
Publications
The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.
This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …
Revoking Rights, Craig J. Konnoth
Revoking Rights, Craig J. Konnoth
Publications
In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …
Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski
Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski
Publications
A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …
Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss
Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss
Publications
This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …
A Few Thoughts On Free Speech Constitutionalism, Helen Norton
A Few Thoughts On Free Speech Constitutionalism, Helen Norton
Publications
No abstract provided.