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Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

College of Law Faculty Scholarship

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social …

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

School of Law Faculty Publications and Presentations

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the …

Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot

Working Paper Series

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have …

Framing The Fourth, Tracey Maclin

Faculty Scholarship

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands …

An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton

College of Law Faculty Scholarship

A proper understanding of the nature of the inherent powers begins with separating whether the judiciary has any constitutional power to overrule Congress from the judiciary’s power to act in the absence of congressional action, i.e. in the interstices of federal statutes and rules. Separating out these two very different types of powers helps clarify that the inherent powers of federal courts are actually both broader and shallower than have been previously thought: Congress has near plenary authority in this area, but the courts have a great deal of leeway to act when Congress has not.

An examination of the …

Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan

Working Paper Series

Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no …

Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall

Faculty Publications

No abstract provided.

Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander

Faculty Working Papers

Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid …

Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Law Faculty Publications

Same-sex couple rights are the topic of much discussion and debate. There are court challenges to the constitutionality of the Defense of Marriage Act (“DOMA”) as well as proposed marriage statutes. The message and the structure for the recognition of same-sex rights need to be modified. This Article proposes applying, for the first time in the area, modern sociology theory, specifically Diffusion Theory, to change how the message is delivered. Using Diffusion Theory to change the message frame will change judicial decisions. By using the backdrop of the Florida adoption statute, a comparison between the successful challenges to the Florida …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis

Journal Articles

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, …

Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard Aynes

Akron Law Faculty Publications

This article examines the opinion of the Court in McDonald v. Chicago and its implications for the future. The author participated as a party-amicus in the case and an article he authored in 1993 was cited by the Court.

Using a concept that others have applied in other situations, this paper suggests that Chicago was a “outlier” and that this case simply involved reigning in a maverick outlier. While the paper finds Justice Thomas’s concurring opinion (with the exception of dicta on the establishment clause) being the most faithful to the meaning, intention, and public understanding of the 14th Amendment, …

Law School Clinics And The First Amendment, Jonathan L. Entin

Faculty Publications

No abstract provided.

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman

Articles & Chapters

This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto A. Imoukuede

Journal Publications

This Article explains why there is a fundamental duty for the government to provide public education under the U.S. Constitution. Numerous scholars and public officials have written on the need to overrule San Antonio v. Rodriguez or adopt alternative approaches to recognizing a right to public education either judicially or by way of constitutional amendment. This Article identifies a consistent and systemic reluctance by the Court to meaningfully enforce positive rights, which are the duties that the government owes to the people. In doing so, it explores the consistent recognition throughout American history that education is a fundamental duty of …

Federalism, Lochner, And The Individual Mandate, Peter J. Smith

GW Law Faculty Publications & Other Works

The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this …

Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn

Articles in Law Reviews & Other Academic Journals

On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …

Framing The Fourth, Tracey Maclin, Julia Mirabella

UF Law Faculty Publications

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165. History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law. Cuddihy’s historical analysis is unprecedented. As Justice …