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Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman May 2020

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what ...


Four Responses To Constitutional Overlap, Michael Coenen May 2020

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment ...


Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins Sep 2019

Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins

Neal E. Devins

No abstract provided.


Our Exceptional Constitution, Timothy Zick Sep 2019

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.


Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman Sep 2019

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Nathan B. Oman

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts ...


Book Review Of Getting Around Brown: Desegregation, Development, And The Columbus Public Schools, Davison M. Douglas Sep 2019

Book Review Of Getting Around Brown: Desegregation, Development, And The Columbus Public Schools, Davison M. Douglas

Davison M. Douglas

No abstract provided.


Congress, Civil Liberties, And The War On Terrorism, Neal Devins Sep 2019

Congress, Civil Liberties, And The War On Terrorism, Neal Devins

Neal E. Devins

In exercising his war-making powers, the President has historically pursued war-related initiatives that implicate civil liberties. Meanwhile, the Congress, with little incentive to resist these initiatives, has played a steadily declining role in warmaking. In this Essay, Professor Devins examines this dynamic, and argues that with Congress largely standing on the sidelines as the President leads the nation in war, it is the American public that has become the principal check on the powers of the President in wartime.


State Constitutionalism In The Age Of Party Polarization, Neal Devins Jul 2019

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.


The Genetic Information Nondiscrimination Act At Age 10: Gina’S Controversial Assertion That Data Transparency Protects Privacy And Civil Rights, Barbara J. Evans May 2019

The Genetic Information Nondiscrimination Act At Age 10: Gina’S Controversial Assertion That Data Transparency Protects Privacy And Civil Rights, Barbara J. Evans

William & Mary Law Review

The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person’s health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information ...


Panel 3: Free Speech And Freedom Of Religion Apr 2019

Panel 3: Free Speech And Freedom Of Religion

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Mike Dorf and Eugene Volokh


Panel 1: Abortion And Gay Rights Apr 2019

Panel 1: Abortion And Gay Rights

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Jonathan Adler, Pam Karlan, and Mark Tushnet


The Father Of Modern Constitutional Liberalism, John Lawrence Hill Dec 2018

The Father Of Modern Constitutional Liberalism, John Lawrence Hill

William & Mary Bill of Rights Journal

No abstract provided.


The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane Oct 2018

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of ...


The Ecology Of Transparency Reloaded, Seth F. Kreimer Jan 2018

The Ecology Of Transparency Reloaded, Seth F. Kreimer

Faculty Scholarship at Penn Law

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued ...


The Press, Privacy, And Public Figures - A Symposium - Introduction, Donald W. Dowd Jun 2017

The Press, Privacy, And Public Figures - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd Jun 2017

Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Skyjacking: Problems And Potential Solutions - Introduction, Donald W. Dowd Jun 2017

Skyjacking: Problems And Potential Solutions - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz Jun 2017

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.


Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman Apr 2017

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts ...


Disability Rights In The Age Of Uber: Applying The Americans With Disabilities Act Of 1990 To Transportation Network Companies, Rachel Reed Mar 2017

Disability Rights In The Age Of Uber: Applying The Americans With Disabilities Act Of 1990 To Transportation Network Companies, Rachel Reed

Georgia State University Law Review

Within the past year, individual plaintiffs and disability rights organizations have initiated a number of lawsuits against Uber, and similar companies like Lyft, alleging violations of Title III of the Americans with Disabilities Act of 1990 (Title III). In each of these cases, the plaintiffs’ success turns on affirmatively answering one significant threshold question: Whether Uber, or a similar entity, falls within the scope of Title III. Traditional taxi companies fall squarely within the Americans with Disabilities Act of 1990’s (ADA) coverage under 42 U.S.C. § 12184 (§ 12184), which governs private companies that provide transportation services. Given the ...


Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law Jan 2017

Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


A Positive Right To Free Labor, Rebecca E. Zietlow May 2016

A Positive Right To Free Labor, Rebecca E. Zietlow

Seattle University Law Review

This Article seeks to resurrect a lost thread in our civil rights tradition: the idea that workers have a positive right to free labor. A positive right to free labor includes the right to work for a living wage free of undue coercion and free from discrimination based on immutable characteristics. Not merely the negative guarantee against the state’s infringement on individual equality and liberty, a positive right to free labor is immediately enforceable against state and private parties. A positive right to free labor is rooted in the Thirteenth Amendment of the Constitution, which prohibits slavery and involuntary ...


Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman Feb 2016

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Howard M Wasserman

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to ...


Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence Jan 2016

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Brooklyn Law Review

The decade-and-a-half period when Earl Warren served as the fourteenth Chief Justice (1953–1969) was marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association, and religion, voting rights, and more. These decisions led to positive, fundamental changes in the lives of millions of less advantaged Americans who had been historically disfavored because of their race, nationality, gender, socioeconomic class, or political views. The legacy of the Warren Court is one of an institution committed to “a dedication in the law to the timeless ideals of ‘human dignity, individual ...


What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells Jan 2016

What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells

Scholarly Works

As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan ...


Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan Jan 2016

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access to ...


Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon Jan 2016

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.


Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead Oct 2015

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

O. Carter Snead

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The ...


Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz Oct 2015

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.