Law Commons^™

In Medias Res, Larry Yackle

Faculty Scholarship

It’s common in academic circles to distinguish between positive arguments (which describe things as they are) and normative arguments (which prescribe the way things ought to be). The distinction dissolves as soon as accounts of how the world works spill over into justifications for the status quo. That happens a lot, especially in discussions of theory. It happens again in David Strauss’ wonderful monograph.1 Strauss offers a succinct exposition of the constitutional system we actually observe, coupled with a powerful explanation of how and why the scheme functions as it does and genuine reassurance that, on the whole, we can …

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The …

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

Scholarly Works

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …

Avoiding Independent Agency Armageddon, Kent H. Barnett

Scholarly Works

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera

Schmooze 'tickets'

No abstract provided.

Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington

Schmooze 'tickets'

No abstract provided.

Canonizing Comparative Constitutionalism: Some Informal Suggestions For Our Schmooze, Sanford Levinson

Schmooze 'tickets'

No abstract provided.

Lessons From The Anticanon (And Some Comparative Questions), Jamal Greene

Schmooze 'tickets'

No abstract provided.

The Problem With Constitutional Borrowing: Imitation Is Not Necessarily The Sincerest Form Of Flattery, Gordon Silverstein

Schmooze 'tickets'

No abstract provided.

Grootboom At Home And Abroad: Adventures In The Construction Of A Global Constitutional Canon, Heinz Klug

Schmooze 'tickets'

No abstract provided.

The Enforcement Of Socioeconomic Rights And The Global Constitutional Canon, Emily Zackin

Schmooze 'tickets'

No abstract provided.

The Global Constitutional Canon: Some Preliminary Thoughts, Peter E. Quint

Schmooze 'tickets'

No abstract provided.

Veils, Politics, And Constitutionalism, Jill Goldenziel

Schmooze 'tickets'

No abstract provided.

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

Judicial Engagement, Written Constitutions, And The Value Of Preservation: The Case Of Individual Rights, Elizabeth Price Foley

Faculty Publications

When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for …

The End Of "One Hand": The Egyptian Constitutional Declaration And The Rift Between The "People" And The Supreme Council Of The Armed Forces, Kristen A. Stilt

Faculty Working Papers

By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution's antagonist. "The army and the people are one" was a common slogan in the early days following Mubarak's ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against protestors continued …

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

United States V. Klein, Then And Now, Gordon G. Young

Faculty Scholarship

United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them …

Federalism, Individual Rights And Judicial Engagement, Kurt T. Lash

Law Faculty Publications

Contemporary “rights talk” under the American Constitution tends to focus on individual rights or those rights that can be perfected in the case of a single individual. This would include, for example, the rights to free expression, free exercise of religion, sexual autonomy, or the right to equal treatment. Under the broad umbrella of individual-rights talk, theoretical discussions generally involve whether courts ought to recognize a particular individual right or what level of scrutiny (or engagement) ought to apply to judicially identified individual rights.

From the beginning of our history as a nation, however, the concept of legally cognizable rights …

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Scholarly Articles

None available.

The Fourth Amendment, Ethan Payne

A with Honors Projects

This projects explains the fourth amendment using skits and a PowerPoint presentation.

The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur

UF Law Faculty Publications

The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers …

Constructing The Other: U.S. Muslims, Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Faculty Scholarship

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts. Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons. One …

Charter Without Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert Currie

Articles, Book Chapters, & Popular Press

The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation's consequential participation in inter-state efforts to combat it. The court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court's adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion of evidence …

Unconstitutional Conditions: The Irrelevance Of Consent, Philip A. Hamburger

Faculty Scholarship

Unconstitutional conditions are a conundrum. On the one hand, if government can spend, why can't it place whatever conditions it wants on its spending? On the other hand, if it can place any conditions on spending, won't it be able to impose restrictions that evade much of the Constitution, including most constitutional rights? This enigma is notoriously complex, and unconstitutional conditions therefore are considered a sort of Gordian knot.

The standard solution is to slice through the knot with consent to conclude that consent excuses otherwise unconstitutional restrictions. This solution, however, is problematic, for it concedes that the government can …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

Scholarly Works

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …