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Constitutional Law

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Can A Politician Block You On Social Media?, Alan E. Garfield Jul 2109

Can A Politician Block You On Social Media?, Alan E. Garfield

Alan E Garfield

No abstract provided.


All Things To All People, Part One, Peter J. Aschenbrenner Dec 2104

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Out The Window--Prospects For The Epa And Fmla After Kimel V. Florida Board Of Regents, Brian E. Ray Nov 2019

Out The Window--Prospects For The Epa And Fmla After Kimel V. Florida Board Of Regents, Brian E. Ray

Brian Ray

This note considers how the heightened scrutiny standard that the Court has used in gender cases under the Fourteenth Amendment will impact the congruence and proportionality test that the Court has applied in a recent series of cases examining congressional power under Section 5 of the Fourteenth Amendment. The purpose of this note is twofold First it closely analyzes Kimel v. Florida Board of Regents, the Court's most recent decision concerning Section 5 and argues that the Court's analysis in Kimel indicates that a statute that involves heightened scrutiny has a much greater possibility of meeting the standards ...


Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray Nov 2019

Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray

Brian Ray

Three of the Constitutional Court's socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfill their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend - an aspect reflected in the Court's emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly ...


Supreme Court Watch, Reginald Oh Nov 2019

Supreme Court Watch, Reginald Oh

Reginald Oh

Discusses the March 1, 2005 U.S. Supreme Court decision regarding the constitutionality of the death penalty in Roper v. Simmons, 125 S. Ct. 1183 (2005). The Court held that the death penalty cannot be applied to individuals under the age of eighteen at the time the crime was committed without violating the Eighth Amendment's prohibition against cruel and unusual punishment.


The International Legacy Of Brown V. Board Of Education, Brian E. Ray Nov 2019

The International Legacy Of Brown V. Board Of Education, Brian E. Ray

Brian Ray

The authors describe the international legacy of Brown v. Board of Education in two discrete but related parts. First, they survey the international and domestic political contexts of the decision, which other commentators have convincingly demonstrated played a prominent role in the debates surrounding legalized segregation and in the arguments before the Supreme Court in the case itself. Important in this section is the intense and widespread international attention that was paid both to the problem of race relations in the U.S. and the decision in Brown. This background sets up the conclusions the authors draw from their survey ...


Supreme Court Watch, Reginald Oh Nov 2019

Supreme Court Watch, Reginald Oh

Reginald Oh

Discusses the case in the 2004-05 U.S. Supreme Court Term which decided a constitutional challenge to the State of California's practice of temporarily racially segregating its prisoners. On November 2, 2004, the Court heard oral arguments in Johnson v. California, a lawsuit brought by an African-American prison inmate in the California Department of Corrections. The petitioner contends that the state's longstanding policy of racially segregating prisoners for sixty days violates the Equal Protection Clause. On February 23, 2005, the Court issued its opinion in ]ohnson v. California, 125 S. Ct. 1141 (2005), and held that the ...


Is Emerging Adulthood Influencing Moffitt’S Developmental Taxonomy? Adding The “Prolonged” Adolescent Offender, Christopher Salvatore, Travis A. Taniguchi, Wayne Welsh Oct 2019

Is Emerging Adulthood Influencing Moffitt’S Developmental Taxonomy? Adding The “Prolonged” Adolescent Offender, Christopher Salvatore, Travis A. Taniguchi, Wayne Welsh

Christopher Salvatore

The study of offender trajectories has been a prolific area of criminological research. However, few studies have incorporated the influence of emerging adulthood, a recently identified stage of the life course, on offending trajectories. The present study addressed this shortcoming by introducing the "prolonged adolescent" offender, a low-level offender between the ages of 18 and 25 that has failed to successfully transition into adult social roles. A theoretical background based on prior research in life-course criminology and emerging adulthood is presented. Using data from the National Longitudinal Study of Adolescent Health analyses examined the relationship between indicators of traditional turning ...


Resisting In Process: Human Beings Ensnared In The Fugitive Slave Law Of 1850 (A Working Collection), Daniel Farbman Oct 2019

Resisting In Process: Human Beings Ensnared In The Fugitive Slave Law Of 1850 (A Working Collection), Daniel Farbman

Dan Farbman

No abstract provided.


Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear Oct 2019

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

Elizabeth T Lear

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is ...


The Ambush Interview: A False Light Invasion Of Privacy, Kevin F. O'Neill Oct 2019

The Ambush Interview: A False Light Invasion Of Privacy, Kevin F. O'Neill

Kevin F. O'Neill

The ''ambush" interview is a controversial investigative reporting technique permeating both national and local television news programming. In the typical ambush interview, a reporter and his news crew intercept an unsuspecting newsworthy subject on the street and bombard him with incriminating accusations ostensibly framed as questions. The ambush interviewee inevitably appears guilty before the viewing audience. This is due to a variety of forces, including the subject's severe credibility disadvantage and the accusatory nature of the reporter's questions. This Note applies a false light invasion of privacy analysis to the ambush technique and examines the nexus between the ...


The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill Oct 2019

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill

Kevin F. O'Neill

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom ...


Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins Oct 2019

Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Lauren M Collins

Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)


State Net Neutrality, Daniel A. Lyons Oct 2019

State Net Neutrality, Daniel A. Lyons

Daniel Lyons

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but ...


The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding Oct 2019

The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding

David F. Forte

The Heritage Guide to the Constitution, first released in 2005, brought together more than 100 of the nation’s best legal experts to provide line-by-line examination of each clause of the Constitution and its contemporary meaning—the first such comprehensive commentary to appear in many decades. The Heritage Guide to the Constitution: Fully Revised Second Edition takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform. The Founders’ guiding principles remain unchanged, yet a number of Supreme Court decisions over the past ...


Interrogation And The Roberts Court, Jonathan Witmer-Rich Oct 2019

Interrogation And The Roberts Court, Jonathan Witmer-Rich

Jonathan Witmer-Rich

Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not ...


"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon Oct 2019

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Lee Fisher

The authors provide varying opinions on the Second Amendment.


Justice Sutherland Reconsidered, Samuel R. Olken Oct 2019

Justice Sutherland Reconsidered, Samuel R. Olken

Samuel R. Olken

In the annals of Supreme Court history, George Sutherland occupies a curious place. Associate Justice of the U.S. Supreme Court from 1921 to 1938, the Utah native has long been identified as one of the infamous "Four Horsemen," known largely for his role as a judicial conservative instrumental in the Court's invalidation of significant aspects of the New Deal. Yet Sutherland was also the author of several influential opinions involving matters as diverse as civil rights, freedom of expression, and others that recognized the broad authority of the federal government in the realm of foreign and military affairs ...


The Second Amendment As A Fundamental Right, Timothy Zick Oct 2019

The Second Amendment As A Fundamental Right, Timothy Zick

Timothy Zick

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a “fundamental” constitutional right. They have asserted that, both on its own terms and relative to rights in the same general class, the Second Amendment has been disrespected, under-enforced, and orphaned. They have argued that courts have treated the Second Amendment as “peripheral,” “fringe,” “anachronistic,” “second rate,” and “second-class.” The Second Amendment has been described as “the Rodney Dangerfield of the Bill of Rights” and even compared ...


Arming Public Protests, Timothy Zick Oct 2019

Arming Public Protests, Timothy Zick

Timothy Zick

Public protests have become armed events, with protesters and counter-protesters openly carrying firearms—generally pursuant to state law. Many view the presence of firearms at protest events as wholly incompatible with the exercise of First Amendment free speech and assembly rights. Although the Supreme Court has yet to decide whether there is a Second Amendment right to openly carry firearms in public, all but a small handful of states in the United States provide some legal protection for open carry. Taking the law as it currently stands, this Article provides a comprehensive assessment of the options available to officials who ...


Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker Oct 2019

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

Jonathan B. Baker

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.


Brief Of Constitutional Law Professors As Amici Curiae In Support Of Respondent, Vincent Levy, Timothy Zick, Gregory P. Magarian Sep 2019

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Respondent, Vincent Levy, Timothy Zick, Gregory P. Magarian

Timothy Zick

No abstract provided.


The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins Sep 2019

The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins

Neal E. Devins

In understanding the willingness of government lawyers to defend the constitutionality of federal statutes, this article will explain why presidents rarely make use of their powers under the Constitution (allowing the president to refuse to defend laws he finds unconstitutional) and under federal law (placing the control of most government litigation with the attorney general). Attention will be paid both to how Department of Justice lawyers enhance their power by defending federal statutes and to how Congress, if need be, can pressure the department to bow to lawmaker preferences. In consequence, when the president refuses to defend a statute, courts ...


Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum Sep 2019

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum

Neal E. Devins

No abstract provided.


Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins Sep 2019

Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins

Neal E. Devins

No abstract provided.


Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins Sep 2019

Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins

Neal E. Devins

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation ...


Through The Looking Glass: What Abortion Teaches Us About American Politics, Neal Devins Sep 2019

Through The Looking Glass: What Abortion Teaches Us About American Politics, Neal Devins

Neal E. Devins

No abstract provided.


What Standards Apply When Freedoms Collide?, Neal Devins Sep 2019

What Standards Apply When Freedoms Collide?, Neal Devins

Neal E. Devins

No abstract provided.


Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins Sep 2019

Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins

Neal E. Devins

No abstract provided.


What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins Sep 2019

What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins

Neal E. Devins

No abstract provided.