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Constitutionalizing Class Inequality: Due Process In State Farm, Martha T. Mccluskey
Constitutionalizing Class Inequality: Due Process In State Farm, Martha T. Mccluskey
Buffalo Law Review
This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a Critical Analysis of Economic Inequality, sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo. The essay focuses on the 2003 U.S. Supreme Court decision in State Farm Mutual Insurance Co. v. Campbell, one of a series of recent cases using the due process clause of the 14th Amendment to limit punitive damage awards against corporate defendants …
Repeal Of "Don't Ask, Don't Tell:" A Smooth Transition, Sharon E. Debbage Alexander, Kathi S. Westcott
Repeal Of "Don't Ask, Don't Tell:" A Smooth Transition, Sharon E. Debbage Alexander, Kathi S. Westcott
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit
Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit
American University Law Review
This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …
Debt And Democracy: Towards A Constitutional Theory Of Bankruptcy, Jonathan C. Lipson
Debt And Democracy: Towards A Constitutional Theory Of Bankruptcy, Jonathan C. Lipson
All Faculty Scholarship
This article examines the relationship between bankruptcy and constitutional law. Article I, § 8, cl. 4 of the Constitution provides that Congress shall have the power to make “uniform laws on the subject of bankruptcies.” While there are many good social, political and economic theories of bankruptcy, there has been surprisingly little effort to explore what it means to have constitutionalized financial distress. This article is a first step in that direction. Constitutional problems with bankruptcy are not new, but present three under-appreciated puzzles: First, why have we put a bankruptcy power in the Constitution, and what does its “peculiar” …
Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar
Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar
Articles
In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …
Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi
Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi
Michigan Law Review
This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine …
Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee
Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee
Scholarly Works
Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.
Prolonged Solitary Confinement And The Constitution, Jules Lobel
Prolonged Solitary Confinement And The Constitution, Jules Lobel
Articles
This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in …
Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman
Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman
Other Publications
This memorandum argues that the sale of loans and loan pools to new owners would help to stabilize housing prices, and that such a modification to the REMIC rules would be desirable and well within Congress’ constitutional authority. Furthermore, it would not lead to successful legal claims by investors in securitized loan pools under the Just Compensation or Due Process clauses, which provide the primary constitutional protections for property interests.
Due Process Traditionalism, Cass R. Sunstein
Due Process Traditionalism, Cass R. Sunstein
Michigan Law Review
In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …
Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.
Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.
Journal Articles
The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by one desirous of actually informing the property owner. In subjecting …
Scrutiny Land, Randy E. Barnett
Scrutiny Land, Randy E. Barnett
Michigan Law Review
Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …
De-Moralized: Glucksberg In The Malaise, Steven D. Smith
De-Moralized: Glucksberg In The Malaise, Steven D. Smith
Michigan Law Review
Ten years down the road, what is the enduring significance of the "assisted suicide" cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This Article, written for a symposium on the tenth anniversary of Glucksberg,, discusses that question. Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion writers' …
‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson
‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson
Stephen E Henderson
If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …