Law Commons^™

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Wilson R. Huhn

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

A Right To Sexual Orientation Privacy: Strengthening Protections For Minors Who Are Outed In Schools, Adam J. Kretz

Adam Kretz

This Article examines a unique question in constitutional law and privacy rights – namely, what rights minor students have to control who can and cannot be informed of their sexual orientation. Through an examination of case law and social science data, the Article proposes that students should hold greater power over information regarding their sexual orientation, and hold responsible school officials who “out” students to a family member, parent, or guardian without the student’s consent.

Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi

Tonja Jacobi

This Article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to …

Drones And Democracy: Missing Out On Accountability?, Benjamin R. Farley

Benjamin R Farley

This article examines whether unmanned aerial vehicles (“drones”) allow the U.S. executive branch to make use-of-force decisions that escape accountability. It identifies three accountability mechanisms that should constrain use-of-force decisions: political accountability; fiscal and supervisory accountability; and legal accountability. It examines the effectiveness of these accountability mechanisms in the abstract and how the unique features of drones interact with these mechanisms. Finally, this article suggests that drones exacerbate preexisting weaknesses in the accountability system governing U.S. use-of-force decisions, potentially leading to unaccountable use-of-force decisions which, in turn, are likely to be riskier and may increase the likelihood of policy failure.

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

The Role Of The Hunter/Seattle Doctrine In Adjudicating Measures Against Affirmative Action, Gautam Y. Reddy

Gautam Y Reddy

In 1997, the Ninth Circuit upheld the constitutionality of Proposition 209, a ballot initiative that the citizens of California passed to ban affirmative action programs in the state. However, over a decade later in 2011, the Sixth Circuit reached the opposite conclusion regarding Proposal 2, a nearly identical ballot initiative passed by the voters of Michigan. At the core of this circuit split is the applicability of a rarely invoked Equal Protection test: the Hunter/Seattle Doctrine.

Controversy stems from the incongruity of this doctrine with the Rehnquist Court’s move towards a less deferential stance regarding affirmative action in key Equal …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

The Devil Made Me Do It: The Plenary Power Doctrine And The Myth Of The Chinese Exclusion Case, Deborah A. Leak, Earl Maltz

Deborah A Leak

No abstract provided.

Washington Was Right: The Supreme Court Could Have Intervened To Interpret French Treaties, Kevin P. Chapman

Kevin P. Chapman

In the early days of his presidency, George Washington faced his first international crisis when French Ambassador Genet demanded that the United States honor its treaty obligations and provide support to the new French Republic in its ongoing war with Great Britain. Concerned about the legal effect that the French Revolution had on the viability of these obligations, Washington asked the Supreme Court to render an opinion. Chief Justice John Jay replied that the Constitution did not authorize the Supreme Court to render advisory opinions.

If Jay was correct, why did Washington, who presided over the very convention that produced …

Reasserting Its Constitutional Role: Congress's Power To Independently Terminate A Treaty, David (Dj) C. Wolff

David (Dj) C. Wolff

Who has the authority to terminate a treaty? The Constitution’s text is silent on the matter and historical precedent has been anything but consistent. Recently, the debate has focused on whether the President can unilaterally terminate a treaty without considering Congressional concerns: witness President Carter’s termination of the 1954 Mutual Defense Treaty with Taiwan and President Bush’s 2001 termination of the Anti-Ballistic Missile Treaty with Russia. There has been comparatively little analysis of the converse question; does Congress have the unilateral power to terminate a treaty in the face of Presidential opposition? This question invokes strong separation of powers considerations; …

Neuroscience And Post-Sentence Civil Commitment: A Response To Professors Erickson And Goldberg, Adam Lamparello

Adam Lamparello

Our knowledge of human behavior, particularly when it comes to assessing what a person may do in the future, continues to develop. Neuroscience has provided insight into whether a person is likely to engage in further acts of violence. It is important to proceed cautiously, but to proceed nonetheless, because contemporary efforts to uncover the biological roots of violence have much more promise than their predecessors.

A Federal Baseline For The Right To Vote, John M. Greabe

John M Greabe

A number of states have laws that define domicile for purposes of voting in terms that would disenfranchise those state residents who do not plan to remain in the state permanently, or even indefinitely. This essay argues that such laws are preempted by the federal constitutional concept of state citizenship, which is informed by the traditional definition of domicile set forth in the Restatement (Second) of Conflict of Laws. Under that definition, all United States citizens with a physical presence in a state and an intention to make the state their home for the time at least are citizens of …

Images In/Of Law, Jessica M. Silbey

Jessica Silbey

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …