Digital Commons Network^™

Policing As Administration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …

Hearsay And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …

Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes

Nevada Supreme Court Summaries

To “provide” health benefits under the Minimum Wage Amendment, an employer need only offer to employees (rather than enroll them in) a qualifying health benefit plan. Tips are not included in an employee’s gross taxable income for calculating maximum health benefit plan premiums.

Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr.

Nevada Supreme Court Summaries

The Minimum Wage Amendment (MWA) of the Nevada Constitution does not have a specific statute of limitations provision. Because the MWA is closely analogous to recovery for back pay under NRS 608.260, the two-year statute of limitations provision in NRS 608.260 applies, and not the catch-all four-year period from NRS 11.220.

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Scholarly Articles

None available.

A Guide To The Singapore Constitution (2nd Ed.), Smu Apolitical

Student Publications

This primer is an introductory guide to the Constitution, its history, the legal concepts associated with it (such as the separation of powers and constitutional supremacy) and so much more. With illustrations and diagrams to aid in understanding, it is designed for readers of all ages and from all walks of life. The Constitution is the supreme law of the land. It provides for, among other things, the 3 branches of the Singapore government (namely, the executive, the legislature and the judiciary) and secures our fundamental liberties. The provisions in the Constitution are applied in our daily lives, both directly …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

State V. Eighth Jud. Dist. Ct. (Schneider), 132 Nev. Adv. Op. 59 (Aug. 12, 2016), Ping Chang

Nevada Supreme Court Summaries

The Court held that the district court abused its discretion when overturning a misdemeanor driving under the influence conviction by failing to consider the state’s evidence of the defendant’s guilt.

Private Prisons And The New Marketplace For Crime, André Douglas Pond Cummings, Adam Lamparello

Faculty Scholarship

A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the …

The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

Faculty Scholarship

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …

Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri

All Faculty Scholarship

The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however. Although unwed fathers won unprecedented legal rights and recognition in a series of Supreme Court cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with married and divorced fathers. This Article excavates nonmarital fathers’ quest for equal rights, until now a mere footnote in the history of constitutional equality law.

Unmarried fathers lacked a social …

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

All Faculty Scholarship

What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …

Combining Constitutional Clauses, Michael Coenen

Journal Articles

No abstract provided.

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

Scholarly Works

The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural …

Legal Formulations Of A Human Right To Information: Defining A Global Consensus, Kimberli Kelmor

Georgetown Law Faculty Publications and Other Works

There is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of definitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through all levels of government including national sub-constitutional laws, national constitutions, and regional and international treaties. In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. Thus, the increasing number …

What Two Legal Scholars Learned From Studying 70 Years Of Supreme Court Confirmation Hearings, Lori A. Ringhand, Paul Collins

Popular Media

This article in The Conversation on March 21, 2016 and moves beyond the conventional wisdom espoused by Biden, Kagan and others, and presents a strong case for an alternative view of the hearings. Examining every statement made at confirmation hearings from 1939 to 2010, we conclude the hearings are important to the health of American democracy. Based on this, we’d like to see partisan politics pushed aside and Judge Merrick Garland to get a hearing.

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

All Faculty Scholarship

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …

The Absurd Logic Behind Florida’S Docs Vs. Glocks Law, Dahlia Lithwick, Sonja R. West

Popular Media

This article published at Slate.com on January 8, 2016, reviews the Wollschlaeger v. Governor of the State of Florida case in which the Florida legislature passed a law that bars health care workers from discussing or recording anything about their patients’ gun ownership or safety practices that could be deemed in bad faith, irrelevant, or harassing.

Taking Patents, Gregory Dolin, Irina D. Manta

All Faculty Scholarship

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …

A Curious Motion: The Uncertain Role Of Anti-Slapp Statutes In Federal Courts, Markus A. Brazill

Prize Winning Papers

No abstract provided.

Brief For Catholics For Choice Et Al. As Amici Curiae Supporting Respondents, Zubik V. Burwell, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Scholarly Publications

Many of the Supreme Court's important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are "contingent" constitution- al determinations: the Court's conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts-particularly in the realm of campaign finance- require reform as well. Stare decisis purportedly insulates the Court's purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring …

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert L. Tsai

Faculty Scholarship

his essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …