Law Commons^™

Reverse-Erie, Kevin M. Clermont

Kevin M. Clermont

Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding …

Multiplicity In Federalism And The Separation Of Powers, Josh Chafetz

Josh Chafetz

By highlighting multiplicity in the federalism context, Alison LaCroix’s new book does constitutional scholarship a great service. Her tracing of the federal idea in the 1760s and 1770s, as well as her tracing of jurisdictional ideas in the early Republic, is thorough and insightful. But it is unclear why her focus suddenly narrows from the federal idea—the idea that multiplicity in levels of government was a virtue rather than a vice—to federal jurisdiction. Certainly, as this Review has endeavored to show, her claim that federalism discourse after 1787 reduced entirely (or even primarily) to jurisdictional debates cannot stand. And this …

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Josh Chafetz

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …

The Unconstitutionality Of The Filibuster, Josh Chafetz

Josh Chafetz

This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.

After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate.

Part III presents a structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" …

Impeachment And Assassination, Josh Chafetz

Josh Chafetz

In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly - and rightly - condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal - impeachment - would be preferable. …

The Political Animal And The Ethics Of Constitutional Commitment, Josh Chafetz

Josh Chafetz

In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some of …

Executive Branch Contempt Of Congress, Josh Chafetz

Josh Chafetz

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Josh Chafetz

No abstract provided.

The Law Of Patronage At A Crossroads, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

Street Harassment And The Informal Ghettoization Of Women, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

"We Don't Want Anybody Anybody Sent": The Death Of Patronage Hiring In Chicago, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

When Lightning Strikes Back: South Carolina's Return To The Unconstitutional Standardless Capital Sentencing Regime Of The Pre-Furman Era, John H. Blume, Sheri Johnson, Emily C. Paavola, Keir M. Weyble

John H. Blume

No abstract provided.

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

John H. Blume

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because …

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part Two, John H. Blume, Emily C. Paavola

John H. Blume

Part One of this article addressed the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.

Eminent Domain And Secondary Rent-Seeking, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

Takings, Narratives, And Power, Gregory S. Alexander

Gregory S Alexander

"The Regulatory Takings Problem" is the title given to a story, or narrative, that has become prominent in the literature on just compensation issues. The story is one of power and fear. It is about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation--private landowners and government regulators. It depicts scenarios of past or threatened abuse of power by local land-use regulators, and it looks to the takings clause generally and regulatory takings doctrine specifically as crucial corrective devices, essential to set the power imbalance aright. The dominant narrative describes …

Alternative Models Of Ante-Mortem Probate And Procedural Due Process Limitations On Succession, Gregory S. Alexander, Albert M. Pearson

Gregory S Alexander

Ante-mortem probate stands as a significant recent development in the American law of wealth succession. It confronts a problem that seriously impairs our probate system, the depredatious will contest, and promises to help revitalize the probate process. Already enacted in several states and currently under active study by the Joint Editorial Board of the Uniform Probate Code and the National Conference of Commissioners on Uniform State Laws, ante-mortem probate is likely to be widely implemented in some form. But while legislators and academics alike support ante-mortem probate as a general idea, disagreement has emerged over the specific form it should …

"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander

Gregory S Alexander

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize …

The Concept Of Property In Private And Constitutional Law: The Ideology Of The Scientific Turn In Legal Analysis, Gregory S. Alexander

Gregory S Alexander

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Most …

Takings And The Post-Modern Dialectic Of Property, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

Amicus Brief: City Of Montebello V. Vasquez, Steven J. Andre

Steven J. Andre

This amicus brief proposes that the court of appeal below and the parties to this litigation have asked the wrong question regarding the governmental activity in question. While the court of appeal was quite correct in recognizing that elected officials’ actions in voting upon legislation and negotiating do not involve exercise of First Amendment rights, this recognition is short sighted. In actuality, no governmental action furthers the First Amendment rights of the government actor. Public officials engage in activity which in many ways resembles constitutionally protected speech and petitioning. They speak, vote, evaluate and otherwise involve themselves in official proceedings …

Representação Democrática Do Judiciário: Reflexões Preliminares Sobre Os Riscos E Dilemas De Uma Ideia Em Ascensão, Jane Reis Gonçalves Pereira

Jane Reis Gonçalves Pereira

O presente trabalho busca apresentar algumas reflexões sobre os riscos e dilemas da ideia de que o Poder Judiciário tem uma dimensão representativa, construindo um embasamento teórico preliminar para a compreensão crítica do tema. Confrontando concepções diversas de representação, são propostos três questionamentos: 1) o Poder Judiciário pode ser entendido como um espaço de representação do povo? 2) Quais são os riscos e implicações de reconhecer, conceitualmente, que o Judiciário tem uma face representativa? 3) Quais são os ônus e limites institucionais que o reconhecimento de tal atributo deve impor aos juízes

America's Written Constitution: Remembering The Judicial Duty To Say What The Law Is, Joshua J. Schroeder

Joshua J Schroeder

In 2013 the Supreme Court embraced a policy of feigned positivism. In general positivism says there are no future rewards and punishments and thus there is no Natural Law that holds sway over rulers whether it is established by a creator God or not. Thus adopting positivism leaves the Court with an existential problem because the Court’s equitable power flows directly from Natural Law and Nature’s God and is much older than the new country known as the United States. But even in the scope of U.S. history positivism lost significant ground in its struggle with equitable power and the …

A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

O presente livro pretende fazer um estudo interformantes, com o fim de verificar se a jurisprudência das Cortes Constitucionais e Supremas resulta explicitamente permeável ao formante doutrinário. Por outro lado, o objeto principal da investigação são as citações diretas da doutrina que utilizam os juízes na motivação das decisões.

Protecting Human Rights: The Approach Of The Singapore Courts, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution? This article is based on a speech delivered at an event at the Conrad Centennial Singapore on 4 December 2014 entitled The Role of the Judiciary in the Promotion and Protection of Human Rights organized by the Delegation of the European Union to Singapore to commemorate Human Rights Day.

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

Lyrissa Barnett Lidsky

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

John F. Stinneford

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

John F. Stinneford

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, Franklin Zimring …

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …