Law Commons^™

Democracy's Handmaid, Robert Tsai

Robert L. Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Constitutional Borrowing, Robert Tsai

Robert L. Tsai

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

John Brown's Constitution, Robert Tsai

Robert L. Tsai

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …

Good Society, Commerce, And The Rehnquist Court, Michael Dorf

Michael C. Dorf

No abstract provided.

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber

Mark Graber

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …

What Does Separation Of Church And State Mean? Guest On Pbs Constitution Usa With Peter Sagal. (Video), Richard Garnett

Richard W Garnett

Rick Garnett was a guest on What does separation of church and state mean? on PBS Constitution USA with Peter Sagal. (video clip)

Emergent Public Discourse And The Constitutional Debate In Tunisia: A Critical Narrative Analysis, Nathaniel Greenberg

Nathaniel Greenberg

The appointment of the Minister of Industry, the so-called “technocrat” Mehdi Jomaa, to form a caretaker government in Tunisia on the eve of the revolution’s third anniversary, threw into stark relief the country’s complex struggle for democracy following the January 14 revolution. The announcement came in the wake of the Islamist party Ennahdha’s sudden renunciation of the Prime Minister’s office in September, ostensibly a sign of cooperation in the face of mounting criticism surrounding the government’s failure to investigate the assassinations of two political opposition figures. A number of Western media outlets, including the New York Times, quickly absorbed the …

Board Meeting Prayer Bound For Supreme Court In Church-State Case, Richard Garnett

Richard W Garnett

ABC News quoted Rick Garnett in the article by Ariane de Vogue. Richard Garnett, an expert on church-state issues at the Notre Dame Law School says, “At the heart of this new case is whether the court should stick with a relatively bright-line rule that treats legislative prayers as presumptively permissible, given their long use in our country, or whether the court should move to more of an all-things-considered inquiry that treats such prayers like Christmas displays and the like.”

The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald

Susan Freiwald

The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based …

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich

Thomas J. Stipanowich

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Litigating Religion, Michael A. Helfand

Michael A Helfand

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating …

Bargained Justice: Plea Bargaining's Innocence Problem And The Brady Safety-Valve, Lucian Dervan

Lucian E Dervan

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are …

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Eileen Kaufman

No abstract provided.

The Federal Protective Power And Targeted Killing Of U.S. Citizens, Greg Mcneal

Greg McNeal

In this responsive essay I argue that the Constitution envisions circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. A settled example where a killing was authorized to protect the federal government was in Cunningham v. Neagle, 135 U.S. 1 (1890), there the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an …

The Imposition Of The Death Penalty In The United States Of America: Does It Comply With International Norms?, Beverly Mcqueary Smith

Beverly McQueary Smith

No abstract provided.

Rethinking Immigration Detention, Anil Kalhan

Anil Kalhan

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …

Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar Gray

Oscar S. Gray

No abstract provided.

Book Review Of Beau Breslin, "From Words To Worlds: Exploring Constitutional Functionality", Robert Tsai

Robert L Tsai

This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.

Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros

Maria L. Ontiveros

This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration …

The Gatehouses And Mansions: 50 Years Later, Richard Leo, K. Alexa Koenig

Richard A. Leo

In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that would come to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court’s most important criminal-procedure decisions” (White 2003-04), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately …

Constitution And "Extraconstitution": Emergency Powers In Postcolonial Pakistan And India, Anil Kalhan

Anil Kalhan

This essay explores the experiences with emergency and emergency-like powers in postcolonial Pakistan and India to illustrate the ways in which constitutional and extraconstitutional states of exception can converge in their application. The experiences in Pakistan with what I term its "extraconstitution" - illustrated most recently by the state of "emergency" declared by Pervez Musharraf in 2007 - demonstrate, perhaps unsurprisingly, that extraconstitutional assertions of emergency powers can provide a ready template for authoritarian rulers to usurp power, violate fundamental rights, and transform the constitutional landscape in the guise of addressing a crisis. At the same time, the authoritarianism in …

The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria Ontiveros, Joshua Drexler

Maria L. Ontiveros

This paper examines the extent to which the Thirteenth Amendment can be used to guarantee access to public education for the children of undocumented workers. It offers a reimagined version of Plyer, written using the Thirteenth Amendment, instead of the Fourteenth Amendment. After offering a brief summary of Thirteenth Amendment jurisprudence, it offers a variety of theoretical frameworks for analyzing the denial of education under the U.S. Constitution. It argues that the Thirteenth Amendment can provide a powerful tool for litigation, moral persuasion, organizing and legislation in the area.

Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield

Alan E Garfield

One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …

What Should We Celebrate On Constitution Day?, Alan Garfield

Alan E Garfield

Congress recently created a new national observance, Constitution Day, to be marked each year on September 17th. This observance presents a valuable opportunity for the vastly diverse American populace to celebrate its shared values. But what, exactly, should Americans celebrate about the Constitution? The Constitution’s text is hardly perfect, and judicial interpretations of the Constitution are themselves problematic. To identify what Americans should celebrate on Constitution Day, this article sets out to identify the Constitution’s core meaning for Americans. To do so, it first draws lessons from two contemporary Establishment Clause disputes (one over the teaching of intelligent design and …

Wyoming Prestatehood Legal Materials, Part Ii, Debora Person

Debora A. Person

No abstract provided.

The Fourth Amendment Status Of Stored E-Mail: The Law Professors’ Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Susan Freiwald

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

A First Principles Approach To Communications' Privacy, Susan Freiwald

Susan Freiwald

Wyoming Pre-Statehood Legal Materials: An Annotated Bibliography, Debora Person

Debora A. Person

No abstract provided.