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Articles 1 - 30 of 365
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The Second Amendment As A Fundamental Right, Timothy Zick
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 …
Special Justifications, Randy J. Kozel
Special Justifications, Randy J. Kozel
Randy J Kozel
The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …
The Death Penalty As Incapacitation, Marah S. Mcleod
The Death Penalty As Incapacitation, Marah S. Mcleod
Marah McLeod
Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.
How can courts and commentators …
Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky
Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky
Erwin Chemerinsky
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. …
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
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
Erwin Chemerinsky
None available.
The Constitutionalization Of Fatherhood, Dara Purvis
The Constitutionalization Of Fatherhood, Dara Purvis
Dara Purvis
Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …
From Selma To Ferguson: The Voting Rights Act As A Blueprint For Police Reform, Stephen Rushin
From Selma To Ferguson: The Voting Rights Act As A Blueprint For Police Reform, Stephen Rushin
Stephen Rushin
The Voting Rights Act of 1965 revolutionized access to the voting booth. Rather than responding to claims of voter suppression through litigation against individual states or localities, the Voting Rights Act introduced a coverage formula that preemptively regulated a large number of localities across the country. In doing so, the Voting Rights Act replaced reactive, piecemeal litigation with a proactive structure of continual federal oversight. As the most successful civil rights law in the nation's history, the Voting Rights Act provides a blueprint for responding to one of the most pressing civil rights problems the country faces today: police misconduct. …
“Collusion” And The Criminal Law, Robert M. Sanger
“Collusion” And The Criminal Law, Robert M. Sanger
Robert M. Sanger
A New Philosophy In The Supreme Court, Robert M. Sanger
A New Philosophy In The Supreme Court, Robert M. Sanger
Robert M. Sanger
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Scott W. Howe
Introduction To Constraining The Executive, Tom Campbell
Introduction To Constraining The Executive, Tom Campbell
Tom Campbell
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Anthony O'Rourke
Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …
Structural Overdelegation In Criminal Procedure, Anthony O'Rourke
Structural Overdelegation In Criminal Procedure, Anthony O'Rourke
Anthony O'Rourke
In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making. Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Martha T. McCluskey
For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …
Balancing Security And Liberty In Germany, Russell A. Miller
Balancing Security And Liberty In Germany, Russell A. Miller
Russell A. Miller
Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …
State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews
State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews
Jud Mathews
Deriding the state action doctrine is one of the great pastimes of American constitutional law. It has been described as a shamble and "incoherent." On its face, the core concept seems straightforward enough constitutional rights are rights against the government. But what counts as the "state action" that triggers the protection of rights seems to shift, maddeningly, from case to case in the Supreme Court's state action jurisprudence.In this article, I aim to help make some sense of why the state action doctrine has developed as it has by setting it in a comparative and historical frame. It can be …
The Blessing Of Separating Church And State, Alan E. Garfield
The Blessing Of Separating Church And State, Alan E. Garfield
Alan E Garfield
No abstract provided.
Procedural Due Process Claims, Erwin Chemerinsky
Procedural Due Process Claims, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Value Of Valor: Soldiers’ Tenets Should Guide All Americans, Alan E. Garfield
Value Of Valor: Soldiers’ Tenets Should Guide All Americans, Alan E. Garfield
Alan E Garfield
No abstract provided.
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Randy J Kozel
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
Who's The Check On Authoritarianism In The Whitehouse?, Alan E. Garfield
Who's The Check On Authoritarianism In The Whitehouse?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Judicial Handbook On Environmental Constitutionalism, James R. May, Erin Daly
Judicial Handbook On Environmental Constitutionalism, James R. May, Erin Daly
James R. May
No abstract provided.
Subnational Environmental Constitutionalism And Reform In New York State, James R. May
Subnational Environmental Constitutionalism And Reform In New York State, James R. May
James R. May
Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub
Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub
David Schraub
The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana
The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana
Deepa Badrinarayana
Some Advice For President-Elect Donald Trump, Alan E. Garfield
Some Advice For President-Elect Donald Trump, Alan E. Garfield
Alan E Garfield
No abstract provided.
Speech And Strife, Robert L. Tsai
Speech And Strife, Robert L. Tsai
Robert L Tsai
The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …
Test Your Knowledge Of Church And State, Alan E. Garfield
Test Your Knowledge Of Church And State, Alan E. Garfield
Alan E Garfield
No abstract provided.
Take Our Quiz About Constitutional Law, Judith L. Ritter
Take Our Quiz About Constitutional Law, Judith L. Ritter
Judith L Ritter
No abstract provided.