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Articles 1 - 15 of 15
Full-Text Articles in Law
The Constitutional Constant, Richard A. Primus
The Constitutional Constant, Richard A. Primus
Articles
According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …
Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore
Faculty Articles and Other Publications
More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the Court to …
Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz
Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz
Law School Blogs
No abstract provided.
Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore
Faculty Articles and Other Publications
No abstract provided.
The Gibbons Fallacy, Richard A. Primus
The Gibbons Fallacy, Richard A. Primus
Articles
In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …
Newsroom: Slate: Goldstein On Travel Ban 02-17-2017, Jared A. Goldstein
Newsroom: Slate: Goldstein On Travel Ban 02-17-2017, Jared A. Goldstein
Life of the Law School (1993- )
No abstract provided.
Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele
Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele
Faculty Publications
Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …
The Disparate Impact Canon, Michael T. Morley
The Disparate Impact Canon, Michael T. Morley
Scholarly Publications
No abstract provided.
Generation Gaps And Ties That Bind: Constitutional Commitments And The Framers' Bequest Of Unamendable Provisions, George Mader
Generation Gaps And Ties That Bind: Constitutional Commitments And The Framers' Bequest Of Unamendable Provisions, George Mader
Faculty Scholarship
“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?
The subject of this Article, in general, is the relationship between “We the People,” …
Introduction To Feminist Judgments: Rewritten Tax Opinions, Anthony C. Infanti, Bridget J. Crawford
Introduction To Feminist Judgments: Rewritten Tax Opinions, Anthony C. Infanti, Bridget J. Crawford
Book Chapters
Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings …
Originalist Law Reform, Judicial Departmentalism, And Justice Scalia, Kevin C. Walsh
Originalist Law Reform, Judicial Departmentalism, And Justice Scalia, Kevin C. Walsh
Law Faculty Publications
Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay …
Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards
Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards
Scholarly Works
On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.
The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …
How To Salvage Article I: The Crumbling Foundation Of Our Republic, David Schoenbrod
How To Salvage Article I: The Crumbling Foundation Of Our Republic, David Schoenbrod
Articles & Chapters
No abstract provided.
The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux
The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux
Publications
The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.
First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …
The Contract Clause: A Constitutional History By James W. Ely (Review), Jay D. Wexler
The Contract Clause: A Constitutional History By James W. Ely (Review), Jay D. Wexler
Shorter Faculty Works
If the Constitution were a zoo, what resident animal would the Contract Clause be? The clause, which is found in Article I, section 10 of our founding document, reads: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” It certainly would not be one of the zoo’s star attractions; the Contract Clause is no First Amendment lion or Fourth Amendment tiger. But it is no bat-eared fox (the Letters of Marque Clause?) or Eurasian water shrew (the Third Amendment?) either. Based on reading Ely’s comprehensive history of the Contract Clause, perhaps it …