Law Commons^™

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller

Scholarly Works

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and …

Constitution Day: An Opportunity For Paralegal Educators To Design Creative Law Learning Activities For The Entire College/University Community, Marissa Moran

Publications and Research

No abstract provided.

Rights, Rules, And Raich, Alex Kreit

West Virginia Law Review

No abstract provided.

Freedom Of The Press Box: Classifying High School Athletes Under The Gertz Public Figure Doctrine, Jonathan Deem

West Virginia Law Review

No abstract provided.

The Court's Purpose: Secular Or Anti-Strife?, Bernadette Meyler

Cornell Law Faculty Publications

No abstract provided.

Property, Place, And Public Discourse, Timothy Zick

Faculty Publications

No abstract provided.

Una Reflexión Sobre La Responsabilidad Extracontractual Del Estado En El Ecuador, Christopher Dinkel

Independent Study Project (ISP) Collection

El tema central de este ensayo trata de la responsabilidad extracontractual del Estado. Presento una breve historia y analizo los debates constitucionales acerca a este tema, dando ejemplos de juicios contemporáneos y su profundidad, para arrojar luz sobre la situación actual en el Ecuador. Hablo sobre el papel de una institución privada que se llama Corporación ProDerechos Ciudadanos que está comprometida en la lucha por respeto y el cumplimiento de los derechos de los ciudadanos, en especial por el cumplimiento de los artículos 20, 21, y 22 de la Constitución ecuatoriana. Ofrezco explicaciones del porqué no se cumple las obligaciones …

Confrontation, Equity, And The Misnamed Exception For "Forfeiture" By Wrongdoing, James F. Flanagan

William & Mary Bill of Rights Journal

No abstract provided.

Marshall, Marbury, And Mr. Byrd: America Unchecked And Imbalanced (Reviewing Losing America By Senator Robert C. Bryd), Gerald G. Ashdown

West Virginia Law Review

No abstract provided.

Originalism As A Legal Enterprise, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The reasonable person is an important and ubiquitous figure in the law. Despite the seeming handicap of being a hypothetical construct assembled by lawyers rather than a flesh-andblood person, he (for most of Western legal history) or she (in more recent times) determines such varied legal and factual matters as the standard of care for negligence liability,' the materiality of misrepresentations in both contract 2 and tort,3 the applicability of hearsay exceptions for admissions against interest,4 the scope of liability for workplace harassment under Title VII, 5 the clarity of law necessary to defeat the qualified immunity of government officials,6 …

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

All Faculty Scholarship

Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

Dignity - The Enemy From Within, Guy E. Carmi

ExpressO

The manuscript challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

The manuscript also demonstrates why articulations of the rationales behind the “argument from dignity” are either superfluous, since they are aptly covered by the “argument from autonomy,” or simply too broad and speech-restrictive to be considered a free speech justification. As a matter of principle, the nexus between freedom of …

William Rehnquist, The Separation Of Powers, And The Riddle Of The Sphinx, Tuan Samahon

Tuan Samahon

No abstract provided.

Analysis On The Leaving Of Grand Justices In The Supreme People’S Courts（最高人民法院大法官的流动分析）, Meng Hou

Hou Meng

No abstract provided.

Finding A Ceiling In A Circular Room: Locke V. Davey, Federalism, And Religious Neutrality, Jesse R. Merriam

ExpressO

The text of the U.S. Constitution clearly distinguishes religion from non-religion by providing that while Congress may pass laws concerning many subjects and prohibiting many things, Congress may not make laws respecting the establishment of religion or prohibiting religious exercise. As the distinctiveness of religion is clear from the text, the Court has had no problem settling that religion, as a subject matter, and religious believers, as a class of persons, are constitutionally distinct. Though not explicated in the text, it is equally clear, and equally settled, that the Religion Clauses tug the government in opposite directions. Noting this tension, …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence

ExpressO

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.

This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or …

The Pocahontas Exception: American Indians And Exceptionalism In Virginia’S Racial Integrity Act Of 1924, Kevin Noble Maillard

ExpressO

Most scholarship on Loving v. Virginia (1967) briefly mentions the “Pocahontas Exception,” a subsection of Virginia’s Racial Integrity Act of 1924 which counted persons of limited American Indian ancestry as white. However, few of these works raise the issue outside of a footnote. This article addresses the treatment of Native American ancestry as a curious exception to the threat of racial impurity. Virginia’s antimiscegenation statute sought to eradicate stealth intrusions of tainted blood into the white race, which proponents believed to be threatened “by the quagmire of mongrelization.” Exempted from this racial policing regime were those influential whites, the “First …

Merck Kgaa V. Integra Lifesciences I, Ltd.: Greater Research Protection For Drug Manufacturers, Samuel Rubin

Duke Journal of Constitutional Law & Public Policy Sidebar

Merck sought protection under a statutory exemption from claims of patent infringement brought by Integra Lifesciences. The Court held unanimously that the safe harbor contained in 35 U.S.C. § 271(e)(1) protected the use of patented inventions used in preclinical research where the results were not submitted to the FDA. The Court's interpretation of the safe harbor provision broadened protection for those engaged in drug research at a substantial cost to patent-holders.

Smith V. City Of Jackson: Age Discrimination Act Authorizes Disparate Impact Claims – But Scope Is Narrow, William B. Holladay

Duke Journal of Constitutional Law & Public Policy Sidebar

When Jackson, Mississippi revised its salary structure for police and public safety officers, it gave proportionately higher increases to officers with less than five years of seniority, who were overwhelmingly under forty years old. Thirty officers over the age of forty sued the city for age discrimination, alleging disparate impact. In a plurality opinion, the Court held that the Age Discrimination in Employment Act authorized claims of disparate impact. When it accepted the employer’s justification for the raise and dismissed the plaintiffs’ claim, however, the Court signaled that in the future, the scope of disparate impact claims would be narrow.

Mayle V. Felix, Aleksandra Kopec

Duke Journal of Constitutional Law & Public Policy Sidebar

Following his murder conviction, Felix filed a pro se habeas petition alleging Sixth Amendment violations at trial The petition was filed within the one-year Antiterrorism and Effective Death Penalty Act deadline. He was later appointed counsel, who filed an amended petition alleging Fifth Amendment violations; but that petition was filed five months after the AEDPA deadline had passed. The Court held that the amended petition was not saved by the Relation Back doctrine because it did not share with the earlier claims a common "core of operative facts."

Keep These Branches Untangled, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

Congress' Pet: Why The Clean Air Act’S Favoritism Of California Is Unconstitutional Under The Equal Footing Doctrine , Valerie Jm Brader

ExpressO

The Clean Air Act gives two regulatory powers to one state – California – that it forbids to all others: the power to regulate fuels, and the power to regulate motor vehicle construction. This paper makes the novel argument that by creating a differential in power between the states, these provisions violate the equal footing doctrine, and are therefore unconstitutional. In doing so, it is the first law review article to provide a complete history of the doctrine, a foundational principle that pre-dates the Constitution and remains the law of the land today. Though the doctrine has been relegated to …

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

ExpressO

This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the “intermediate scrutiny” test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new “intermediate scrutiny” test since the mid-1980s, through a careful examination …

Here Is The Church, Now Who Owns The Steeple? A Revised Approach To Church Property Disputes, Adam E. Lyons

ExpressO

This article reviews two approaches to the implementation of neutral principles of law – the constitutionally permissible method of resolving property disputes between bodies in a religious hierarchy. Though both approaches may be valid, the formal title approach, as implemented by the Pennsylvania Supreme Court in Presbytery of Beaver-Butler v. Middlesex Presbyterian Church, leads to problems in application that have been rectified by that court’s more recent decision in In re St. James the Less. It is the contention of this article that future courts and practitioners facing church property disputes can draw guidance from the St. James decision when …

Finding A Ceiling In A Circular Room: Locke V. Davey, Federalism, And Religious Neutrality, Jesse R. Merriam

ExpressO

The text of the U.S. Constitution clearly distinguishes religion from non-religion by providing that while Congress may pass laws concerning many subjects and prohibiting many things, Congress may not make laws respecting the establishment of religion or prohibiting religious exercise. As the distinctiveness of religion is clear from the text, the Court has had no problem settling that religion, as a subject matter, and religious believers, as a class of persons, are constitutionally distinct. Though not explicated in the text, it is equally clear, and equally settled, that the Religion Clauses tug the government in opposite directions. Noting this tension, …

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

ExpressO

Public attitudes about privacy are central to the development of fourth amendment doctrine in two respects. These are the two “reasonableness” requirements, which define the scope of the fourth amendment (it protects only “reasonable” expectations of privacy), and provide the key to determining compliance with its commands (it prohibits “unreasonable” searches and seizures). Both requirements are interpreted in substantial part through evaluation of societal norms about acceptable levels of privacy from governmental intrusions. Caselaw, poll data, newspaper articles, internet sites, and other vehicles for gauging public attitudes after the September 11 attacks indicate that public concerns about terrorism and the …

Corporate Form And Substantive Consolidation, William H. Widen

ExpressO

This Article reformulates substantive consolidation doctrine in light of modern financing techniques. Building upon the author's research showing the prevalence of substantive consolidation in large public bankruptcies, it offers an economic account (based on Coase's theory of firm size) to explain why we should expect that the circumstances giving rise to substantive consolidation should be common (rather than rare as suggested by the rhetoric of case law). Extending the asset partitioning theory developed by Professors Hannsmann and Kraakman, it offers a model for looking at the corporate form within corporate groups, particularly in the insolvency context. The recent Third Circuit …

A Unified Theory Of Constitutional Facts, David L. Faigman

ExpressO

Facts play an essential role in constitutional cases, ranging from giving meaning to the text’s words to giving those words operational effect. Yet the Supreme Court does not take facts seriously, preferring to see them as a constituent part of doctrine. The Court does not find facts, it interprets them to conform to, or buttress, conclusions reached on other grounds. This constructive view of facts has the salutary effect of consistency, in that doctrine need not change as facts, or our knowledge of the facts, change. This consistency comes at a cost, however, for doctrine built on erroneous factual premises …