Law Commons^™

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill

Faculty Scholarship

Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of …

Situating Dobbs, Paula A. Monopoli

Faculty Scholarship

The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. …

Feminist Legal History And Legal Pedagogy, Paula A. Monopoli

Faculty Scholarship

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications …

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt

Faculty Scholarship

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …

Modeling Narrowest Grounds, Maxwell Stearns

Faculty Scholarship

The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”

The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not …

Little Sisters Of The Poor V. Pennsylvania: The Not So Little Effect Of Interfering With The Aca's Contraceptive Mandate, Sabrina Rubis

Women, Leadership & Equality

No abstract provided.

Women, Democracy, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

This paper explores the status of women’s participation in our democracy, in response to both the commemoration of the Nineteenth Amendment’s centennial and the deep misogyny aimed at women holding formal political power during the current pandemic. The paper explores the connection between constitutional design and the level of women's participation in democratic governance. It suggests that the robust participation of women in our democracy is not only morally right, but that such parity is central to both the legitimacy of the state and its continued existence. The paper begins by describing the state of women’s participation in formal and …

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

The Constitutional Development Of The Nineteenth Amendment In The Decade Following Ratification, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

The Security Court, Matt Steilen

Maryland Law Review Online

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya L. Banks

Faculty Scholarship

One byproduct of increased interracial marriages post Loving is a growing number of multiracial children. This cohort of multiracials tends to overshadow older and larger generations of multiracial people whose genealogical mixture is more distant. Some interracial couples, their multiracial children and others support a multiracial category on the U.S. Census. Proponents argued that multiracial individuals experience a unique type of discrimination that warrants treating them as a separate racial category. This article concedes that multiracial individuals should enjoy the freedom to self-identify as they wish, and like others, be protected by anti-discrimination law. It concludes, however, that current arguments …

Obergefell, Fisher, And The Inversion Of Tiers, Maxwell Stearns

Faculty Scholarship

In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. In oral argument in Fisher v. University of Texas, the Court signaled its growing discomfort with the Grutter v. Bollinger strict scrutiny doctrine, which affords a level of institutional deference in tension with narrow tailoring and least restrictive means. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve de facto applications of strict …

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Brief Of Appellant, Abdullah Malik Joppy A/K/A Richard Joppy V. State Of Maryland, No. 533, Paul Dewolfe, Renée M. Hutchins, Peter Honnef

Court Briefs

No abstract provided.

Brief Of Appellant, Davon Jones V. State Of Maryland, No. 547, Paul Dewolfe, Renée M. Hutchins, Matthew T. Healy

Court Briefs

No abstract provided.

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Brief Of Appellant, John Hill V. State Of Maryland, No. 2740, Paul Dewolfe, Renée M. Hutchins, Silva Georgian

Court Briefs

No abstract provided.

The Armstrong Evolution, Michael Pappas

Maryland Law Review Online

No abstract provided.

Constitution Day Lectures, Maxwell L. Stearns, Paula A. Monopoli, Larry S. Gibson, Robert Koulish, David J. Maher

Maryland Law Review Online

No abstract provided.

Inheritance Law And The Marital Presumption After Obergefell, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

The Bellona Company's Case, Casey Conrad

Legal History Publications

The Bellona Gunpowder Company of Maryland was one of Maryland’s most prominent gunpowder manufactories during the early nineteenth century. Founded in 1801, the gunpowder company become the second leading gunpowder producer for the American government, and supplied almost one-fifth of American domestic gunpowder. In 1828, the Baltimore and Susquehanna Railroad Company was incorporated by the State of Maryland to construct a railroad that would connect the City of Baltimore to the Susquehanna River. The legislature authorized the railroad company to initiate condemnation proceedings against private property owners, if it was unable to negotiate for the sale of such land. In …

American Civil Liberties Union Of North Carolina V. Tata: Manipulation Of The Government Speech Doctrine Through Specialty License Plates, Kaitlin E. Leary

Maryland Law Review Online

No abstract provided.

Mccutcheon V. Fec: Sacrificing Campaign Finance Regulation In The Name Of Free Speech, Haley S. Peterson

Maryland Law Review Online

No abstract provided.

Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Spokeo V. Robins And The Constitutional Foundations Of Statutory Standing, Maxwell Stearns

Faculty Scholarship

In Spokeo v. Robins, the Supreme Court granted certiorari to address the following question: Does Congress have the power to confer standing upon an individual claiming that a privately owned website violated its federal statutory obligation to take specified steps designed to promote accuracy in aggregating and reporting his personal and financial data even if the resulting false disclosures did not produce concrete harm? This somewhat arcane standing issue involves congressional power to broaden the scope of the first of three constitutional standing requirements: injury in fact, causation, and redressability. Although the case does not directly address the prudential …

HarperOoning, GRoeIng And BrownIng The First Amendment, Mark A. Graber

Faculty Scholarship

No abstract provided.