Law Commons^™

Presidential Succession: The Art Of The Possible, James E. Fleming

Faculty Scholarship

I am deeply honored that John D. Feerick invited me to come back to Fordham University School of Law and appear in this splendid conference. Yet I hasten to say that, when it comes to presidential succession, John Feerick and Joel K. Goldstein are tough acts to follow. Indeed, in an otherwise wonderfully organized conference, the line of succession here is flawed. I suppose I should declare myself unqualified to follow these experts on presidential succession! I shall bring the perspective of the constitutional theory generalist to bear on the questions framed for our panel.

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

Faculty Scholarship

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these …

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

A Solution Looking For A Problem: Testimony Before The 2010 Maryland General Assembly On Senate Bill 570/House Bill 986: Campaign Materials – Stockholder Approval, Larry S. Gibson

Faculty Scholarship

The U.S. Supreme Court in Citizens United v Federal Elections Commission declared unconstitutional under the First Amendment right to freedom of speech federal statutory limitations on corporate political expenditures. Before Citizens United, Maryland was already among the 26 states that permitted corporations to make direct political contributions and to make independent political expenditures. Consequently, Citizens United did not change Maryland election law and practice. The Maryland General Assembly has steadfastly resisted efforts to change the Maryland approach. Over the past several years, the General Assembly has repeatedly rejected bills that would have banned political contributions by business entities. Many in …

Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

New Groups And Old Doctrine: Rethinking Congressional Power To Enforce The Equal Protection Clause, William Araiza

Faculty Scholarship

No abstract provided.

Taking Responsibilities As Well As Rights Seriously, James E. Fleming

Faculty Scholarship

In his first book, Ronald Dworkin famously called for “taking rights seriously” by treating them as “trumps” over considerations of utility or the general welfare.1 Taking Rights Seriously (along with other works) provoked calls for taking responsibilities as well as (or instead of) rights seriously, or for engaging in “responsibility talk,” not just “rights talk.”2 In Life’s Dominion, Dworkin himself got on the responsibility bandwagon in justifying the right to procreative autonomy and the right to die.3 He countenanced that government may encourage women to take the decision whether to have an abortion responsibly, so long as it does not …

The Remnants Of Exaction Takings, Timothy M. Mulvaney

Faculty Scholarship

This article explores the ability of local governments to impose discretionary permit conditions, or "exactions, " to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These "regulatory takings " decisions provide land use regulators with …

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Lovell Banks

Faculty Scholarship

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge.

Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …

Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry

Faculty Scholarship

Despite extensive scholarly, legislative, and judicial attention to privacy, our understanding of privacy and the interests it protects remains inadequate. At the crux of this problem is privacy’s protean nature: it means “so many different things to so many different people” that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. As a result, important privacy problems remain unaddressed, often to society’s detriment.

In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value …

Death Ineligibility And Habeas Corpus, Lee B. Kovarsky

Faculty Scholarship

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

A Tale Told By A President, Mark A. Graber

Faculty Scholarship

Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …

A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli

Faculty Scholarship

In classical social movement theory, scholars have identified the advocates of change as elements of agitation and the establishment as the entity that responds in an attempt to control the agitators. This classical approach has assumed that the establishment is a generally monolithic entity that responds in a unified manner to the efforts of the advocates of change. While this approach may accurately characterize some rhetorical situations, it does not necessarily have to characterize all such situations. For example, one could describe the judiciary as a part of the establishment because judges are well-connected and powerful individuals who, in many …

The Disposing Power Of The Legislature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type …

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its …

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …

Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill

Faculty Scholarship

We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between "originalists" and "nonoriginalists". In the statutory arena, we have a three-way battle between "textualists," "intentionalists", and "pragmatists." A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the Practice of interpretation. Real world interpreters – to a person – deploy a variety of interpretative methods when they seek to resolve …

Skelos V. Paterson: The Surprisingly Strong Case For The Governor's Surprising Power To Appoint A Lieutenant Governor, Richard Briffault

Faculty Scholarship

On July 8, 2009, Governor David Paterson surprised New York's legal and political world by announcing his intention to appoint Richard Ravitch to fill the vacancy in the office of lieutenant governor. No New York governor had ever appointed a lieutenant governor before. Paterson's action was widely denounced as unauthorized and unconstitutional. Four months later, observers were even more astonished when the Court of Appeals in Skelos v. Paterson upheld the governor's action. This article explains why the governor and Court of Appeals were right to conclude that the governor had statutory and constitutional authority for his action. Indeed, the …

Is Ashcroft V. Iqbal The Death (Finally) Of The “Historical Test” For Interpreting The Seventh Amendment?, Kenneth S. Klein

Faculty Scholarship

There is the possibility that the recent Supreme Court decision of Ashcroft v. Iqbal finally will be the necessary impetus to revisit one of the more bizarre but enduring canards of American jurisprudence -- the way we interpret the Seventh Amendment's preservation of a right to a jury trial in federal civil litigation. The Seventh Amendment provides that "[i]n suits at common law ... the right of trial by jury shall be preserved." To this day, the way we apply the Seventh Amendment-in other words, what we interpret to be the constitutional intent and mandate of our Founders-is to postulate …

Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N'Cobra) And Its Antecedents, Adjoa A. Aiyetoro, Adrienne D. Davis

Faculty Scholarship

Most of the legal scholarship on reparations for Blacks in America focuses on its legal or political viability. This literature has considered both procedural obstacles, such as statutes of limitations and sovereign immunity, as well as the substantive conception of a defensible cause of action. Indeed, Congressman John Conyers introduced H.R. 40, a bill to study reparations, in 1989 and every Congressional session since, and there have been three law suits that have received national attention. This Essay takes a different approach, considering reparations as a social movement with a rich and under-explored history. As Robin Kelley explains, such an …

Constitutionalising An Overlapping Consensus: The Ecj And The Emergence Of A Coordinate Constitutional Order, Charles F. Sabel, Oliver H. Gerstenberg

Faculty Scholarship

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking …

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

Who Judges? Who Cares? History Now And Then, Barbara Aronstein Black

Faculty Scholarship

There are two strands of history: Call them strand A and strand B. A: "How independent are those who judge?" B: "Where is the judicial power located?" At a high enough level of abstraction the strands merge (as, at a high enough level of abstraction, what does not?). The issue then becomes whether in a given society all judging is in the hands of independent judges. And the point is that there are two ways of avoiding the decision of cases by independent judges, corresponding, naturally, to the two strands of history:

[A] Through the judges: Punish them, reward them, …

Making Social Rights Conditional: Lessons From India, Madhav Khosla

Faculty Scholarship

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This …