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State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker Oct 2009

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker

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Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis ...


Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge Oct 2009

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

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The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific ...


In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand Oct 2009

In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand

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In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation ...


The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen May 2009

The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen

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Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment ...


The Partially Prudential Doctrine Of Mootness, Matthew I. Hall Apr 2009

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

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The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve ...


Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine Jan 2009

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

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In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the ...


Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz Jan 2009

Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz

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No abstract provided.


Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee Jan 2009

Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee

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Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum Jan 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

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This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. The author examines the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. The author contends that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of ...


Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum Jan 2009

Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum

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This short essay explores the potential doctrinal implications of the Supreme Court's recent decision in Pleasant Grove v. Summum.


Of Historiography And Constitutional Principle: Jefferson’S Letter To The Danbury Baptists, Ian C. Bartrum Jan 2009

Of Historiography And Constitutional Principle: Jefferson’S Letter To The Danbury Baptists, Ian C. Bartrum

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This article examines the ways that the Supreme Court has used Thomas Jefferson's letter to the Danbury Baptists (a wall of separation between church and state) as a rhetorical symbol. It finds the letter at the heart of the Court's debate over competing theories of religious neutrality. The article then explores the treatment the letter has received in several leading academic histories, and concludes that professional historians have largely tailored their arguments to match the Supreme Court's ideological divide. The article concludes that, because the goals of historical argument and legal argument are fundamentally different, this incestuous ...


Same-Sex Marriage In The Heartland: The Case For Legislative Minimalism In Crafting Religious Exemptions, Ian C. Bartrum Jan 2009

Same-Sex Marriage In The Heartland: The Case For Legislative Minimalism In Crafting Religious Exemptions, Ian C. Bartrum

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This commentary cousels legislative caution in creating exemptions to Iowa's nondiscrimination law for those with religious objections to same-sex marriage.


Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells Jan 2009

Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells

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Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v ...


Gonzales, Casey And The Viability Rule, Randy Beck Jan 2009

Gonzales, Casey And The Viability Rule, Randy Beck

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Gonzales v. Carhart upheld a federal ban on intact D&E abortions. The dissenters in Gonzales accused the majority of ignoring the rule that a state may only prohibit abortion of a viable fetus, one capable of life outside the womb. The continuing discord over the viability rule highlights an issue that remains unsettled 34 years after Roe: Why may a state protect the life of a fetus after it reaches viability, but not before? Professor John Hart Ely long ago noted Roe's failure to justify the viability rule, observing that the Court's defense seems to mistake a ...


The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen Jan 2009

The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

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Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1 ...


The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr. Jan 2009

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

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Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The ...


The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine Jan 2009

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

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Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate ...