Law Commons^™

Blackness As Fighting Words, Etienne C. Toussaint

Faculty Publications

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the …

Predictive Facts, Brent Ferguson

Washington Law Review

A substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations.

Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact—facts not specific to a certain …

An Unfair Cross Section: Federal Jurisdiction For Indian Country Crimes Dismantles Jury Community Conscience, Alana Paris

Northwestern Journal of Law & Social Policy

Under the Sixth Amendment to the United States Constitution, federal jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under …

Family Law By The Numbers: The Story That Casebooks Tell, Laura T. Kessler

Utah Law Faculty Scholarship

This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field.

The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages …

Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng

Research Collection Yong Pung How School Of Law

This paper proposes to study constitutional and administrative law in Singapore through the lenses of Atiyah’s and Summers’ concepts of form and substance in order to discern fruitful avenues for the development of Singapore constitutional and administrative law. While the concepts of form and substance in the context of constitutional law are often associated with constitutional interpretation, they can also be fruitfully applied to other areas of constitutional and administrative law to shed light on the potential trajectories of Singapore law. The intent of this paper is to apply Atiyah’s and Summers’ concepts of form and substance to Singapore constitutional …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Pursuing Diversity: From Education To Employment, Amy L. Wax

All Faculty Scholarship

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus

Book Chapters

This chapter discusses how Lin Manuel Miranda's Hamilton: An American Musical is changing the future of originalism. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, but because readings of Founding era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton's cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative has retold America's …

Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit Rubinstein Reiss

ConLawNOW

The United States’ response to the COVID-19 pandemic was sub-optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in the Centers for Disease Control and Prevention (CDC) efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Directors, in an unusual step, published an op-ed calling out political intervention in the CDC. This article proposes two changes to strengthen the CDC’s institutional independence: codifying the CDC’s role in preventing diseases and reducing harms in a statute, and restructuring the agency …

Unconstitutional Parenthood, Jeffrey A. Parness

College of Law Faculty Publications

A flurry of recent noteworthy articles have urged the U.S. Supreme Court to elaborate further on the federal constitutional requisites for legal parenthood relevant to child custody, child visitation, and allocation of parental responsibility. These articles appear under such titles as Constitution of Parenthood, Constitutional Parenthood, Constitutional Parentage, and The Constitutionalization of Fatherhood. They follow recent initiatives by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) suggesting new forms of childcare parenthood. And they follow new parentage law initiatives by state legislatures and courts. This Article goes beyond these …

Burying Mcculloch?, David S. Schwartz

Arkansas Law Review

Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash

Arkansas Law Review

In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

Marshalling Mcculloch, Richard Primus

Arkansas Law Review

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.

Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson

Arkansas Law Review

David S. Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, is a truly excellent book, for which I was happy to contribute the following blurb appearing on the back jacket: "David Schwartz has written an indispensable study of thesingle most important Supreme Court case in the canon. As such, he delineates not only the meaning and importance of the case in 1819, but also the use made of it over the next two centuries as it became a central myth and symbol of the very meaning of American constitutionalism.”

Mcculloch's "Perpetually Arising" Questions, David S. Schwartz

Arkansas Law Review

I’m truly honored to have my book be the subject of a symposium on Balkinization, and I’m deeply grateful to Jack Balkin and John Mikhail for organizing and hosting it. Among its many gratifications for me personally, the symposium guaranteed that at least eight people would read the book. That these readers have engaged with it so closely and insightfully is icing on the cake. My first article on McCulloch four years ago, which became the basis for a couple of the early chapters in the book, insisted that McCulloch was properly interpreted as far less nationalistic than we were …

Scholarship In Review: A Response To David S. Schwartz's The Spirit Of The Constitution: John Marshall And The 200-Year Odyssey Of Mcculloch V. Maryland, Law Review Editors

Arkansas Law Review

We are elated to introduce, and the Arkansas Law Review is honored to publish, this series discussing and applauding David S. Schwartz’s new book: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. Schwartz sets forth meticulous research, coupled with unparalleled insight, into the opinion penned by Chief Justice John Marshall and details the winding path Marshall’s words have traveled over the past 200 years. Schwartz argues that the shifting interpretations of McCulloch, often shaped to satisfy the needs of the time, echoes the true spirit of the Constitution.

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Correlation And Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Skepticism among American scholars about the value of analytic legal positivism stems in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s framework and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law in particular, demonstrating the weaknesses in assuming that the private law model can be sustained without …

Five Takeaways From High Court's Term, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last month, the Supreme Court wrapped up it 2019-2020 term with a flurry of significant rulings.

The court confirmed that Congress and state attorneys general may subpoena third parties for evidence when legitimately investigating a sitting president; held that the executive branch must engage in reasoned decision-making when rescinding administrative protections for a vulnerable population (i.e., beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program); and defined the scope of the president's power to remove officials from high office.

The court also clarified that federal anti-discrimination employment protections extend to LGBTQ workers; held that states may punish members …

Law Enforcement Welfare Checks And The Community Caretaking Exception To The Fourth Amendment Warrant Requirement, Andrea L. Steffan

Loyola of Los Angeles Law Review

No abstract provided.

Marshaling Mcculloch, Richard A. Primus

Reviews

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.

Impeachment, Donald Trump And The Attempted Extortion Of Ukraine, Lawrence J. Trautman

Pace Law Review

For only the third time in the nation’s history, the decade of the 2020s begins with impeachment of a U.S. president. The first three years of the Trump presidency is characterized by: incitement of rampant political and racial polarization; multiple lies to the public on a daily basis from the president and administration; unprecedented cabinet and high level administrative personnel turnover; multiple convictions and sentencing of high level election campaign and administrative officials for crimes sounding in bribery and corruption; an investigation by Robert Mueller into Russian involvement in the 2016 U.S. elections; continuous violations of the Constitutional emoluments clause …

Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns

Seattle University Law Review SUpra

No abstract provided.

Legal Constraint In Emergencies: Reflections On Carl Schmitt, The Covid-19 Pandemic And Singapore | Symposium On Covid-19 & Public Law, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The controversial legal theorist Carl Schmitt’s challenge to the possibility of meaningful legal constraint on executive power in emergencies could not be more relevant in a world struggling to deal with Covid-19. Scrambling against time, governments around the world have declared states of emergency and exercised a swathe of broad executive powers in an effort to manage this highly infectious disease. In times like these, if Schmitt is indeed right that emergencies cannot be governed by law, we are on the cusp of (or perhaps have already entered) a post-law world – where the business of government is characterised by …

Judicial Review And Governmental Bad Faith, John M. Greabe

Law Faculty Scholarship

[Excerpt] This column is the third and final installment of a series considering some potential implications of June Medical Services v. Russo, a case involving a constitutional challenge to a Louisiana law regulating access to abortion services. The United States Supreme Court heard arguments in the case on March 4. A decision is expected shortly.

The first column sought to place June Medical Services in context by describing the history of constitutional abortion-rights litigation at the Supreme Court. The second explained what the case is likely to tell us about the respect the court will show to prior constitutional …

Covid-19 And American Democracy, Barry Sullivan

Faculty Publications & Other Works

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.

Judicial Precedent In Emerging Constitutional Jurisdictions: Formulating A Doctrine Of Constitutional Stare Decisis For Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

Judicial precedents in constitutional law raiseunique stare decisis considerations. While they are authoritative pronouncementson the proper interpretation of the Constitution and are thus an essentialcomponent of constitutional law, they are also merely judicial precedents – andthus susceptible to being overturned. These considerations have been thesubject of a well-developed body of literature, especially in the context of USSupreme Court constitutional precedents.Yet, despite being a constitutional supremacy, little attention has beenpaid in Singapore to the question of the proper judicial approach towardsconstitutional precedents. This paper aims to address this issue. It will discernthe de facto principles that Singapore judges have thus far …

Dangerous Exhibitions: Erotic Justice And Comparative Constitutional Law, Elena Cohen

Dissertations, Theses, and Capstone Projects

The beginning of the 21^st century is widely seen as a time of great progress for LGBTQ people. Gay marriage, gay sex, adoption by same sex couples, and gay people serving in militaries have all been legalized in many countries in the past two decades, often through the decisions of constitutional courts. However, these constitutional protections of sexuality have been found in limited contexts and applied to a limited class of people, such that many are still vulnerable to repression by governments and majoritarian politics. In order to resist this sexual oppression, I widen the focus from gay and …

Wiping Away The Tiers Of Judicial Scrutiny, R. George Wright

St. John's Law Review

(Excerpt)

Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multilevel judicial scrutiny. Tiered scrutiny exhibits remarkable variability and complexity. At its simplest, tiered scrutiny involves a judicial inquiry into the legitimacy and the degree of importance of some public goal purportedly furthered by the government policy at issue. The courts then typically undertake a second step, inquiring into the degree of “tailoring” of the government policy— namely the policy’s overinclusiveness or underinclusiveness relative to its supposed purpose. This simplified account of tiered scrutiny conceals, however, a number of important problems. …

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer such an historical …