Law Commons^™

Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti

Marquette Law Review

Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …

Republication Liability On The Web, Jeffrey Standen

Marquette Law Review

The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …

Revenge Of The Sixth: The Constitutional Reckoning Of Pandemic Justice, Brandon Marc Draper

Marquette Law Review

The Sixth Amendment’s criminal jury right is integral to the United States

criminal justice system. While this right is also implicated by the Due Process

Clause, Equal Protection Clause, and several federal and state statutes,

criminal jury trial rates have been declining for decades, down from

approximately 20% to 2% between 1988 to 2018. This dramatic drop in the

rate of criminal jury trials is an effective measure of the decreased access to

fair and constitutional criminal jury trials.

Is The Constitution’S Convention For Proposing Amendments A “Mystery”? Overlooked Evidence In The Narrative Of Uncertainty, Robert G. Natelson

Marquette Law Review

Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable, subject to congressional control, or both. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction.

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Marquette Law Review

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The Living Constitution And Moral Progress: A Comment On Professor Young's Boden Lecture, David A. Strauss

Marquette Law Review

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Disgorging Emoluments, Caprice L. Roberts

Marquette Law Review

This Article is about unjust enrichment. It includes a theory of an unjust

enrichment cause of action against executive actors who receive unlawful

emoluments. Interpretations of the boundaries of unlawful emoluments range

from receipt of a gift or benefit because of the position of power held to quid

pro quo exchanges of a thing of value in exchange for government information

or advantage. Wherever the proper line, the purpose of the law of unjust

enrichment is to prevent and undo benefits one has no right to retain. It

achieves those goals with the use of restitution remedies including

disgorgement of …

The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.

Marquette Law Review

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …

Applying The U.S. Constitution To Foreign Asylum Seekers: Exposing A Curious, Inconsistent Practice In The Federal Courts, Shalini Bhargava Ray

Marquette Law Review

Asylum law is based on an international treaty, but federal courts routinely invoke U.S. constitutional norms in adjudicating asylum claims. Specifically, they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to “persecution” and whether the harm was inflicted “on account of” a protected characteristic, such as political opinion or religion. In a close analysis of this unusual practice, this Article argues that federal courts have come to inconsistent, and often incompatible, conclusions regarding the use of constitutional norms in the analysis of asylum claims: principally, on whether constitutional norms establish sufficient, insufficient, necessary, or …