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Unusual Deference, William W. Berry Iii
Unusual Deference, William W. Berry Iii
Florida Law Review
Three Eighth Amendment decisions—Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp—have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep—the decision to ignore core constitutional principles and instead defer to state punishment practices. The confusion arises from the text of the Eighth Amendment where the Supreme Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices. This is a classical analytical mistake—while the Amendment might prohibit rare punishments, it does not make the …
Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage In The Post-Obergefell Era, Robert Keefe
Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage In The Post-Obergefell Era, Robert Keefe
Florida Law Review
Gay and lesbian partners used adult adoption to create family relationships and to ensure inheritance and property rights in the decades before the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide. Same-sex partners who chose adult adoption as an alternative to marriage before the Obergefell decision must now dissolve the adoption in order to exercise their constitutional right to marry due to state incest laws prohibiting marriages between parents and their adopted children. It is difficult, however, to dissolve an adoption, and anecdotal evidence indicates that some judges have refused to dissolve adoptions between same sex partners. …
By Any Other Name: Rational Basis Inquiry And The Federal Government’S Fiduciary Duty Of Care, Gary Lawson, Guy I. Seidman
By Any Other Name: Rational Basis Inquiry And The Federal Government’S Fiduciary Duty Of Care, Gary Lawson, Guy I. Seidman
Florida Law Review
Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process of Law Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something functionally very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. …
The Possibility Of Illiberal Constitutionalism?, Mark Tushnet
The Possibility Of Illiberal Constitutionalism?, Mark Tushnet
Florida Law Review
This Essay examines the possibility of an illiberal constitutionalism in which some citizens have “second-class” status – protected against arbitrary government action but with restricted rights. Drawing on scholarship dealing with “dual states” and federalism, the Essay argues that illiberal constitutionalism is possible conceptually but may be quite difficult to sustain over time in the face of the openness of even illiberal polities to demographic and similar changes.