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Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee Jan 2020

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Journal Articles

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and ...


Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai Jan 2020

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Journal Articles

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed ...


The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen Jan 2020

The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen

Journal Articles

How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have ...


The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bernstein, James A. Wooten Sep 2019

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bernstein, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.


The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen May 2019

The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen

Journal Articles

No abstract provided.


Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor Apr 2019

Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor

Journal Articles

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts ...


Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein Apr 2019

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Journal Articles

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in ...


The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports Jan 2019

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

Journal Articles

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment's warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as "reasonable to believe" in describing how exigent the situation must be to permit the police to proceed without a warrant. Nor surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law ...


The Constitutionalization Of Fatherhood, Dara Purvis Jan 2019

The Constitutionalization Of Fatherhood, Dara Purvis

Journal Articles

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 ...


Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn Jan 2019

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather ...


Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens Jan 2019

Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Journal Articles

The 100th anniversary of the 19th Amendment to the United States Constitution is an appropriate moment to reflect on the history—and consider the future—of the right to vote in the United States. High school and college classes teach the nation’s suffrage story as integral to our identity, focusing on the enfranchisement of women under the 19th Amendment and African Americans pursuant to the 15th Amendment.1 Constitutional law courses also present the 15th Amendment as foundational knowledge for the legal profession.2 Critical legal theory and women’s legal history texts frequently cover the 19th Amendment as ...


Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae Quinn, Grace R. Mclaughlin Jan 2019

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae Quinn, Grace R. Mclaughlin

Journal Articles

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current ...


The Theory And Practice Of Contestatory Federalism, James A. Gardner Dec 2018

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually ...


Special Justifications, Randy J. Kozel Oct 2018

Special Justifications, Randy J. Kozel

Journal Articles

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 ...


The Security Court, Matthew J. Steilen Sep 2018

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security ...


Active Judicial Governance, James A. Gardner Sep 2018

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.


Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg Jul 2018

Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the ...


How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen May 2018

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative ...


Secret Law, Jonathan Manes Apr 2018

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes ...


Characterizing Constitutional Inputs, Michael Coenen Jan 2018

Characterizing Constitutional Inputs, Michael Coenen

Journal Articles

No abstract provided.


Bringing Brown V. Board Of Education Out Of Retirement, Angela Mae Kupenda Jan 2018

Bringing Brown V. Board Of Education Out Of Retirement, Angela Mae Kupenda

Journal Articles

The decision in the landmark U.S. Supreme Court case Brown v. Board of Education, turns 65 years old in 2019. While 65 is considered to be a normal retirement age, Brown was retired many years ago while it was still just a toddler. As a result, Brown never became all that it could be. Now as Brown turns 65, it is (past) time to bring Brown out of its early, premature retirement. The primary purpose of this commentary is to encourage other professors to think, too, on what we can do individually, and what we must do collectively, to ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

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 ...


Reconstructing An Administrative Republic, Jeffrey A. Pojanowski Jan 2018

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid ...


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark Jan 2018

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the ...


Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner Dec 2017

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation ...


More Restrictive Alternatives, Michael Coenen Dec 2017

More Restrictive Alternatives, Michael Coenen

Journal Articles

No abstract provided.


The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter Oct 2017

The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter

Journal Articles

Scholars have long been divided over the role, function, and significance, if any, of oral argument in judicial decision-making.' Federal courts seem similarly divided, as some circuits routinely grant oral argument in almost every case, while others grant oral argument in only a small fraction of appeals. This divide should not be dismissed as merely an idiosyncratic debate or as a response to excessive workload, particularly when one considers that approximately 53,000 appeals were filed in federal courts of appeals in the year ending September 30, 2016.2 Since the Supreme Court grants certiorari in only approximately eighty cases ...


Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke May 2017

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

No abstract provided.


Precedent And Speech, Randy J. Kozel Feb 2017

Precedent And Speech, Randy J. Kozel

Journal Articles

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 ...