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The Constitution As Poetry, Samuel J. Levine Jan 2019

The Constitution As Poetry, Samuel J. Levine

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Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


Political Dysfunction And Constitutional Structure, David Orentlicher Jan 2019

Political Dysfunction And Constitutional Structure, David Orentlicher

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In this essay, Professor Orentlicher reviews three books that analyze different features of the U.S. political system:

1. Michelle Belco & Brandon Rottinghaus, The Dual Executive: Unilateral Orders in a Separated and Shared Power System (Stanford Univ. Press 2017).

2. Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (Harvard Univ. Press 2017).

3. Martin H. Redish, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford Univ. Press 2017).


Made In Taiwan: Alternative Global Models For Marriage Equality, Stewart Chang Jan 2019

Made In Taiwan: Alternative Global Models For Marriage Equality, Stewart Chang

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This Article comparatively analyzes the judicial decisions that led to same-sex marriage equality in Taiwan, South Africa, and the United States. After first evaluating the structural mechanisms that led Taiwan to become the first Asian nation to legalize same-sex marriage through Interpretation No. 748 of the Taiwan Constitutional Court, this Article then draws comparisons to how marriage equality was similarly affected through a delayed imposition of the court order in South Africa to allow the legislature an opportunity to rectify the law in Minister of Home Affairs v. Fourie, and finally considers how these approaches provide equally viable and more ...


Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook Jan 2019

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

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In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In ...


Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen Jan 2019

Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen

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The Supreme Court ordinarily supports its establishment of major constitutional principles with detailed justifications in its opinions. On occasion, however, the Court proceeds in a very different way, issuing landmark pronouncements without giving any supportive reasons at all. This Article documents the recurring character and deep importance of these “quietrevolution rulings” in constitutional law. It shows that—however surprising it might seem—rulings of this sort have played key roles in shaping incorporation; reverse incorporation; congressional power; federal courts; and freedom-ofspeech, freedom-of-religion, and equal-protection law. According to the synthesis offered here, these rulings fall into two categories. One set of ...


Constructing The Original Scope Of Constitutional Rights, Nathan Chapman Jan 2019

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

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In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration ...


From Guantanamo To Syria: The Extraterritorial Constitution In The Age Of "Extreme Vetting", Shawn E. Fields Jan 2018

From Guantanamo To Syria: The Extraterritorial Constitution In The Age Of "Extreme Vetting", Shawn E. Fields

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This Article examines for the first time in scholarly literature whether and to what extent the Constitution applies extraterritorially to immigrants abroad. In particular, it explores whether non-detained immigrants and refugees outside the territorial boundaries of the United States can claim constitutional protection to challenge immigration policies and orders. The Supreme Court's recent willingness to reconsider the limits of the political branches' "plenary power" over immigration law and policy, coupled with the Court's recent extension of the Constitution to certain classes of extraterritorial noncitizens, suggests that a future role may exist for extraterritorialj urisprudence to inform constitutional immigration ...


Supreme Court Reform: Desirable - And Constitutionally Required, David Orentlicher Jan 2018

Supreme Court Reform: Desirable - And Constitutionally Required, David Orentlicher

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No abstract provided.


Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf Jan 2018

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

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This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such ...


Is Pena-Rodriguez V. Colorado Just A Drop In The Bucket Or A Catalyst For Improving A Jury System Still Plagued By Racial Bias, And Still Badly In Need Of Repairs, Robert I. Correales Jan 2018

Is Pena-Rodriguez V. Colorado Just A Drop In The Bucket Or A Catalyst For Improving A Jury System Still Plagued By Racial Bias, And Still Badly In Need Of Repairs, Robert I. Correales

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Historically, race-based jury bias has maintained the most prominent place in the hierarchy of social ills that have plagued the American Criminal Justice System. Relying on Due Process and Equal Protection principles, the United States Supreme Court and lower federal courts have chipped away at the problem with mixed results. State Courts have also served as laboratories, providing important lessons on the successes and failures of different approaches, often leading the way with their innovations. A formidable obstacle commonly referred to as a "black box," better known as the no-impeachment rule, has made progress difficult. The no-impeachment rule was designed ...


Chevron's Liberty Exception, Michael Kagan Jan 2018

Chevron's Liberty Exception, Michael Kagan

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This Article argues that the Supreme Court’s practice in immigration cases reflects an unstated but compelling limitation on Chevron deference. Judicial deference to the executive branch is inappropriate when courts review the legality of a government intrusion on physical liberty. This norm is illustrated by the fact that the Court has not meaningfully applied Chevron deference in cases concerning deportation, and also has seemed reluctant to do so in cases concerning immigration detention. It is a logical extension of the established rule that Chevron deference does not apply to questions of criminal law. By contrast, the Court applies Chevron ...


Favoring The Press, Sonja R. West Jan 2018

Favoring The Press, Sonja R. West

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In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media ...


Due Process Of War, Nathan Chapman Jan 2018

Due Process Of War, Nathan Chapman

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The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war ...


Submarine Statutes, Christian Turner Jan 2018

Submarine Statutes, Christian Turner

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I define as “submarine statutes” a category of statutes that affect the meaning of later-passed statutes. A submarine statute calls for courts to apply future statutes differently than they would have otherwise. An example is the Religious Freedom Restoration Act, which requires, in some circumstances, exemptions for religious exercise from otherwise compulsory statutory requirements. A new statute can only be understood if its interaction with RFRA is also understood. While scholars have debated the constitutionality of some statutes like these, mainly analyzing the legitimacy of their entrenching quality, I argue that submarine statutes carry an overlooked cost. Namely, they add ...


Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells Jan 2018

Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells

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In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.

Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common ...


Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen Jan 2018

Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen

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A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally ...


A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman Jan 2018

A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman

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Michael McConnell is one of the most influential constitutional scholars of the past thirty years. He has written a great deal about religious liberty, but relatively little about how his own religious beliefs may relate to his constitutional jurisprudence. This essay is the first to explore the connection between McConnell’s religious views and scholarship. The essay engages with a short piece by McConnell that sketches the outlines of a “reformed liberalism.” McConnell argued that reformed Christian theology is compatible with the classical liberalism that animated the framing of the U.S. Constitution. Though he did not develop this account ...


Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck Jan 2018

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

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The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed ...


Suing The President For First Amendment Violations, Sonja R. West Jan 2018

Suing The President For First Amendment Violations, Sonja R. West

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On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely ...


Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael Wells Jan 2018

Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael Wells

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This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was ...


Qualified Immunity After Ziglar V. Abbasi: The Case For A Categorical Approach, Michael Wells Jan 2018

Qualified Immunity After Ziglar V. Abbasi: The Case For A Categorical Approach, Michael Wells

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Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of ...


Due Process Of War, Nathan Chapman Jan 2018

Due Process Of War, Nathan Chapman

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The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war ...


Due Process Abroad, Nathan Chapman Dec 2017

Due Process Abroad, Nathan Chapman

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Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up ...


Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part I - Originalism And Deontology, Peter Brandon Bayer Jan 2017

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part I - Originalism And Deontology, Peter Brandon Bayer

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This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the ...


Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards Jan 2017

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of ...


Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum Jan 2017

Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

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Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia's death has created. "Public meaning" originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these "New Originalists" have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for ...


The Due Process Bona Fides Of Executive Self-Pardons And Blanket Pardons, Peter Brandon Bayer Jan 2017

The Due Process Bona Fides Of Executive Self-Pardons And Blanket Pardons, Peter Brandon Bayer

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Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and "blanket"-or mass-clemency benefiting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution's Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive ...


Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part Ii - Deontological Constitutionalism And The Ascendency Of Kantian Due Process, Peter Brandon Bayer Jan 2017

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part Ii - Deontological Constitutionalism And The Ascendency Of Kantian Due Process, Peter Brandon Bayer

Scholarly Works

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the ...


Adjudicating Religious Sincerity, Nathan Chapman Jan 2017

Adjudicating Religious Sincerity, Nathan Chapman

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Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility ...


The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters Jan 2017

The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters

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Many scholars have commented that the state action doctrine forecloses use of the First Amendment to constrain the policies and practices of online service providers. But few have comprehensively studied this issue, and the seminal article exploring “[c]yberspace and the [s]tate [a]ction [d]ebate” is fifteen years old, published before the U.S. Supreme Court reformulated the federal approach to state action. It is important to give the state action doctrine regular scholarly attention, not least because it is increasingly clear that “the private sector has a shared responsibility to help safeguard free expression.” It is critical ...