Law Commons^™

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

The Ten Commandments Return To School And Legal Controversy Follows Them, Leora Harpaz

Faculty Scholarship

The United States Supreme Court confronted the issue of a classroom display of the Ten Commandments almost 25 years ago in the case of Stone v. Graham. In that case, the Court struck down a Kentucky statute that required the posting of the Ten Commandments in all public school classrooms. In a per curiam opinion, the Court summarily reversed a decision of the Supreme Court of Kentucky and concluded that the statute violated the First Amendment's Establishment Clause because it had no secular purpose. The outcomes of recent judicial decisions considering the constitutionality of the display of the Ten Commandments …

Presidential Elections - The Right To Vote And Access To The Ballot, John B. Anderson, Mitchell W. Berger, Grace E. Robson

Faculty Scholarship

The following article is a tripartite effort by Mitchell Berger and Grace E. Robson, members of the Florida Bar; John B. Anderson, a member of the Nova Southeastern University's Shepard Broad Law Center faculty; and a team of two of the students at that law school, Jason Blank and Tom Brogan, to examine the subject of ballot access for non-major party candidates in presidential elections in the wake of the recent decision of the Supreme Court of Florida in Reform Party of Florida v. Black.' Mr. Berger has furnished a critical analysis of that decision. Our team of students has …

Judicial Review Without Judicial Supremacy: Taking The Constitution Seriously Outside The Courts, James E. Fleming

Faculty Scholarship

Larry Sager and Larry Kramer have written important books that, in quite different ways, call for taking the Constitution seriously outside the courts. Sager's Justice in Plainclothes' and Kramer's The People Themselves2 nonetheless join issue in significant ways, and therefore it is illuminating to analyze them as a pair.

To get a handle on the differences between the two Larrys' books, I have concocted the following fanciful hypothetical. Imagine a law school with a faculty that includes Ronald Dworkin: court-centered constitutional theorist extraordinaire and proponent of a liberal moral reading of the American Constitution.3 Further imagine that the faculty includes …

The Section 5 Power And The Rational Basis Standard Of Equal Protection, William D. Araiza

Faculty Scholarship

No abstract provided.

War, Crisis, And The Constitution, Sotirios A. Barber, James E. Fleming

Faculty Scholarship

Most recent discussion of the United States Constitution and war--both the war on terrorism and the war in Iraq--has been dominated by two diametrically opposed views: the alarmism of those who see many current policies as portending gross restrictions on American civil liberties, and the complacency of those who see these same policies as entirely reasonable accommodations to the new realities of national security. Whatever their contributions to the public discussion and policy-making processes, these voices contribute little to an understanding of the real constitutional issues raised by war. Providing the historical and legal context needed to assess competing claims, …

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel Gora

Faculty Scholarship

No abstract provided.

Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark A. Graber

Faculty Scholarship

No abstract provided.

Toward Flawlessness, Peter E. Quint

Faculty Scholarship

No abstract provided.

Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky

Faculty Scholarship

No abstract provided.

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

Faculty Scholarship

No abstract provided.

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne

Faculty Scholarship

This article explores the variety of opinions expressed by the Justices in the two “Ten Commandments” cases, specifically Justice O’Connor’s dissent and Justice Breyer’s concurrence in Van Orden v. Perry.

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, …

Constitutionalism, Judicial Review, And Progressive Change, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change …

Holmes On The Lochner Court, Gerald F. Leonard

Faculty Scholarship

For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

Facial Challenges And Federalism, Gillian E. Metzger

Faculty Scholarship

This Essay addresses the question of whether challenges to legislation as exceeding Congress' powers should be assessed on a facial or an as-applied basis, a question that rose to the fore in the Supreme Court's recent decision in Tennessee v. Lane. The Essay begins by arguing that what distinguishes a facial challenge is that it involves an attack on some general rule embodied in the statute. Such challenges can take a broader or narrower form, and thus the terms 'facial" and "as-applied" are best understood as encompassing a range of possible challenges rather than as mutually exclusive terms. The …

Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

The nondelegation doctrine, as it has been traditionally understood, maintains that the federal Constitution places limits (however modest) on the kind and quantity of discretion that Congress can grant to other actors. Eric Posner and Adrian Vermeule have recently described this doctrine as a "neurotic burden"' on the legal system that "lacks any foundation in constitutional text and structure, in standard originalist sources, or in sound economic and political theory.''2 They agree that the Constitution forbids Congress from delegating the formal power to enact legislation through the Article I voting process,3 but they argue that "a statutory grant of authority …

Is Obtaining An Arrestee's Dna A Valid Special Needs Search Under The Fourth Amendment? What Should (And Will) The Supreme Court Do?, Tracey Maclin

Faculty Scholarship

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex …

Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

Does the Constitution limit the extent to which Congress can grant discretion to other actors? The traditional nondelegation doctrine says yes, though advocates of the doctrine strongly disagree about the source of that principle and the location of the line between permissible and impermissible discretion. A number of modern scholars and judges, however, doubt whether the Constitution contains any such principle. This article demonstrates that the Constitution constrains Congress's ability to grant discretion to other actors through the requirement that laws for carrying federal power into execution must be "necessary and proper." The words "necessary" and "proper" have distinct constitutional …

I Want To Live: Medicine Betrayed By Ideology In The Political Debate Over Terri Schaivo, George J. Annas

Faculty Scholarship

The public's view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians-one carrying a saw, another an I.V. pole-with the caption, "Coming Soon to a Sickbed Near You . .. [tihe United States Congress." The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were …

Policing L.A.'S Skid Row: Crime And Real Estate Redevelopment In Downtown Los Angeles [An Experiment In Real Time], Bernard E. Harcourt

Faculty Scholarship

In this article, I document the present. I make a record, with photographs, interviews, maps, and observations of L.A.'s Skid Row as it is today. Drawing on the tradition and methods of critical socio-legal studies, I also explore the constitutive dimensions of deviance. I investigate the possible attraction that disorderliness and criminality may have to today's urban pioneers. I explore the idea that deviance and disorder may become, in some corners, a consumable good to urban dwellers. And I do this by drawing on numerous hours of personal observation on the streets of L.A.'s Skid Row, on interviews of service …

The Story Of United States V. Salerno: The Constitutionality Of Regulatory Detention, Daniel C. Richman

Faculty Scholarship

Is it constitutional for the government to lock up people without waiting to convict them at trial? If it is, what are the limits on the government's power to lock up anyone it deems dangerous? These are issues raised by preventive detention provisions in bail statutes, and addressed in United States v. Salerno. The controversy about these bail statutes, once so hotly contested, has died down. But the broader questions about the government's power to detain suspected criminals without giving them the benefit of full criminal process remain unresolved, and have taken on a new urgency as the nation confronts …

Rethinking Retroactivity, Robert J. Jackson Jr.

Faculty Scholarship

Under the stringent test set forth in Teague v. Lane,' defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final.2 The purported exception to this general principle is said to require that a new constitutional rule be "implicit in the concept of ordered liberty'3 for it to be applied to criminal cases decided before its pronouncement. Once a rule of criminal procedure is characterized as "new,"4 Teague prohibits the rule's invocation in habeas proceedings unless the rule both "assure[s] that no man has been …

The Return Of Spending Limits: Campaign Finance After Landell V. Sorrell, Richard Briffault

Faculty Scholarship

On August 18, 2004, the United States Court of Appeals for the Second Circuit held that the First Amendment, as interpreted by the Supreme Court in Buckley v. Valeo, does not preclude mandatory limitations on campaign expenditures.In Landell v. Sorrell, the court concluded that limitations imposed by the state of Vermont on candidate spending in state election campaigns are "supported by [the state's] compelling interests in safeguarding Vermont's democratic process from 1) the corruptive influence of excessive and unbridled fundraising and 2) the effect that perpetual fundraising has on the time of candidates and elected officials.^" To …

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …