Digital Commons Network^™

Lethal Injection: A Horrendous Brutality, Robin C. Konrad

Washington and Lee Law Review

No abstract provided.

Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett

Washington and Lee Law Review

No abstract provided.

Solitary Confinement Until Death By State-Sponsored Homicide: An Eighth Amendment Assessment Of The Modern Execution Process, Robert Johnson

Washington and Lee Law Review

No abstract provided.

The Demise Of Capital Clemency, Paul J. Larkin Jr.

Washington and Lee Law Review

No abstract provided.

Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Phyllis Goldfarb

Washington and Lee Law Review

No abstract provided.

“Merchants And Thieves, Hungry For Power”: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Washington and Lee Law Review

No abstract provided.

The Supreme Court’S Talmudic Debate On The Meanings Of Guilt, Innocence, And Finality, Jonathan D. Colan

Washington and Lee Law Review

No abstract provided.

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 …

Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield

Alan E Garfield

No abstract provided.

Tying The Knot With A Surname? The Constitutionality Of Japan's Law Requiring A Same Marital Name, Koji Higashikawa

ConLawNOW

The Japanese Supreme Court issued a decision denying married women the right to retain their separate maiden name legally after marriage. It upheld the constitutionality of an old law requiring both marital partners to adopt the same surname. This essay by a Japanese scholar provides insight and explanation into the Supreme Court’s decision.

Originalism And Same-Sex Marriage, Steven G. Calabresi, Hannah M. Begley

University of Miami Law Review

This article examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law Review

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …

A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian

Washington University Undergraduate Law Review

The central question presented in this paper is whether specialty license plates constitute government speech, and are thus subject to disapproval by the Board of the Texas Department of Motor Vehicles. The core concerns reviewed in this research, largely focus on defining whose speech specialty license plates are. The purpose is to investigate and analyze the precedent established as a result of a recent case, Walker v. Texas Division, Sons of Confederate Veterans. The paper thoroughly reviews the arguments made in the majority opinion, as well as those of the dissenting opinion, with an interdisciplinary approach. The argument presented …

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Qualified Immunity When Facts Are In Dispute, Leon Friedman

Touro Law Review

No abstract provided.

The Theory Of Municipal Custom And Practice, Karen Blum

Touro Law Review

No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Touro Law Review

No abstract provided.

Advice And Consent: The Power Struggle Behind Merrick Garland’S Supreme Court Nomination, Alan E. Garfield

Alan E Garfield

A Supreme Court Homecoming, George S. Isaacson

The Journal of Appellate Practice and Process

No abstract provided.

Constitutional Law—Fourth Amendment And Seizures— Accidental Seizures By Deadly Force: Who Is Seized During A Police Shootout? Plumhoff V. Rickard, 134 S. Ct. 2012 (2014)., Adam D. Franks

University of Arkansas at Little Rock Law Review

No abstract provided.

Combining Constitutional Clauses, Michael Coenen

Journal Articles

No abstract provided.

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David H. Hudson Jr., Emily H. Harvey

University of Arkansas at Little Rock Law Review

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 …

Constitutionalizing Corporate Law, Elizabeth Pollman

Vanderbilt Law Review

The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity …

Prove Yourselves: Oliver Wendell Holmes And The Obsessions Of Manliness, John M. Kang

West Virginia Law Review

No abstract provided.

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.