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Posthumously Conceived Children And Social Security Entitlements; Or Things (Not) To Do In Little Rock When You’Re Dead, Mel Cousins

Mel Cousins

This case note examines a number of recent decisions of the Arkansas state courts concerning the entitlements of posthumously conceived children under social security and workers compensation law. These decisions highlight the differences in approach which have been adopted in this important area and the difficulties caused by the lack of a uniform approach in federal law.

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

A Darwinist View Of The Living Constitution, Scott Dodson

Scott Dodson

The metaphor of a “living" Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective.

This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that …

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Paula A Monopoli

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …

Listener Interests In Compelled Speech Cases, Laurent Sacharoff

Laurent Sacharoff

The Lecture Notes Of St. George Tucker; A Framing Period View Of The Bill Of Rights, David T. Hardy

David T. Hardy

This article reflects a transcription of the lecture notes of St. George Tucker, relevant to the newly ratified Bill of Rights. Tucker lectured law at the College of William and Mary from 1790 to 1804, and was well informed on the legal events of his day, with a brother in the first Senate and a friend in the First House. Tucker's notes reflect an astonishingly modern, and broad, view of the Bill of Rights' protections. His notes recently came to some prominence, being debated last term by majority and dissent in District of Columbia v. Heller.

Of Persons And Prenatal Humans: Why The Constitution Is Not Silent On Abortion, Lawrence Nelson

Lawrence J Nelson

Many jurists and legal commentators have concluded that the Constitution does not protect a woman’s right to terminate a pregnancy because nothing in the Constitution’s text and no principle or rule derived from its structure, internal logic, or propositions supports striking down restrictive legislation on abortion. In short, Roe v. Wade, Casey v. Planned Parenthood, and their progeny have been wrongly decided because the Constitution has absolutely no bearing on abortion other than to leave it to the legislative branch.

The conclusion that the Constitution is silent on abortion is false because the Constitution, in the text of the Fourteenth …

With A Little Help From The Courts: Mark Tushnet On Judicial Review Of Social And Economic Rights, Adam Shinar

Adam Shinar

This is a review of Mark Tushnet's "Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". The review outlines the main arguments in the book and then moves to elaborate on two preconditions, which, I think, are necessary for Tushnet's project to succeed – the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet's broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet's "Taking the Constitution Away from the Courts", a work …

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution., David Rossman

David Rossman

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

State Courts, State Territory, State Power: Reflections On The Extraterritoriality Principle In Choice Of Law And Legislation, Katherine J. Florey

Katherine J. Florey

An important (if sometimes poorly understood) extraterritoriality principle constrains the reach of the laws state legislatures may constitutionally enact. Indeed, the Supreme Court has at times suggested that this principle serves to invalidate any “application of a state statute to commerce that takes place wholly outside of the State’s borders.” In the choice-of-law context, however, state courts make the decision to apply state law (including state statutory law) to out-of-state activities (including commercial activities) constantly and routinely. Yet because state courts’ choice-of-law decisions are subject only to the very minimal constraints of the Due Process Clause, the application of forum …

The Right To Privacy And America's Aging Population, Kristine Knaplund

Kristine Knaplund

As the number of elderly grows significantly, especially those with cognitive impairments, how do we as a society deal with their need for privacy and intimate association? Two critical issues have so far gone unaddressed in the legal literature: the lack of personal freedom suffered by those who move into large assisted living facilities and nursing homes, versus the lack of social support for those who remain in their own homes. While seniors in nursing homes are lectured and ridiculed, even transferred involuntarily, for having a sexual relationship, elderly living alone are being preyed upon by unscrupulous caregivers who know …

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

Edward Lee

This Essay examines the possible effect the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause. Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment’s right to bear “arms” and the Free Press Clause’s right to the freedom of the “press,” meaning the printing press. Both rights were viewed, moreover, as preexisting, natural rights to …

“Mr. Presidential Candidate: Whom Would You Nominate?”, Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Appellate Courts Inside And Out, Maxwell L. Stearns

Maxwell L. Stearns

Commentary on "Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeal" by Jonathan Matthew Cohen. Ann Arbor, University of Michigan Press, 2002.

The Second Amendment: Scope And Criminological Considerations, Clayton E. Cramer

Clayton E Cramer

The recent decision D.C. v. Heller (2008) has opened up the question of what the Second Amendment protects. What “arms” are protected? What classes of persons may be properly prohibited from being armed?

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow

Rebecca E Zietlow

ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …

The Wages Of Originalist Sin: District Of Columbia V. Heller, Jeffrey M. Shaman

Jeffrey M. Shaman

This essay analyzes and critiques the Supreme Court’s recent decision in District of Columbia v. Heller, which ruled that that the Second Amendment protects an individual right to possess firearms unconnected with service in a militia. The focus of the essay is on Justice Scalia’s majority opinion in Heller, which adheres strictly to an extreme view of originalism holding that the Constitution should be interpreted by ascertaining its original meaning at the time it was adopted. Justice Scalia believes that the Constitution has a static meaning, and that changes in the world around us are of no relevance to constitutional …

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Mark Graber

No abstract provided.

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Mark Graber

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted …

Introduction: Ancients, Moderns And Guns, Mark A. Graber

Mark Graber

No abstract provided.

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Mark Graber

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …

Counter-Stories: Maintaining And Expanding Civil Liberties In Wartime, Mark A. Graber

Mark Graber

No abstract provided.

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Mark Graber

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …

Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber

Mark Graber

No abstract provided.

Constitutional Theory Goes To Market, Mark A. Graber

Mark Graber

No abstract provided.

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Mark Graber

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …

Judicial Recantation, Mark A. Graber

Mark Graber

No abstract provided.

Legal, Strategic Or Legal Strategy: Deciding To Decide During The Civil War And Reconstruction, Mark A. Graber

Mark Graber

No abstract provided.

Conflicting Representations: Lani Guinier And James Madison On Electoral Systems, Mark A. Graber

Mark Graber

No abstract provided.