Law Commons^™

Foreign Law As Legislative Fact In Constitutional Cases, A. Christopher Bryant

Faculty Articles and Other Publications

Do we really need another law review article about foreign law in constitutional interpretation? In fact, we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

What Mcdonald Means For Unenumerated Rights, A. Christopher Bryant

Faculty Articles and Other Publications

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its own erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises …

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

Faculty Articles and Other Publications

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the …

What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy

Faculty Articles and Other Publications

This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …

Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …

The Pursuit Of Perfection: Congressional Power To Enforce The Reconstruction Amendments, A. Christopher Bryant

Faculty Articles and Other Publications

In June 2009 the Supreme Court avoided a decision on the constitutionality of the Voting Rights Act's preclearance requirement, while at the same time managing to foreshadow that provision's ultimate demise. In a separate opinion, Justice Thomas announced that he would have reached the issue and invalidated the preclearance requirement. Conceding that unconstitutional racial discrimination in the administration of elections continued to be an unfortunate reality, he asserted that Congress was not permitted to pursue "perfect compliance" with the Constitution's mandate via the use of "broad prophylactic legislation."

Justice Thomas's statement accurately, though to be sure rather starkly, expressed an …

The Supreme Court's New Public-Private Distinction Under The Dormant Commerce Clause: Avoiding The Traditional Versus Nontraditional Classification Trap, Bradford Mank

Faculty Articles and Other Publications

In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held that the ‘dormant’ Commerce Clause doctrine (DCCD) allows for a distinction between appropriate laws establishing local government monopolies that provide public services such as waste disposal as opposed to inappropriate laws favoring the self interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky …

Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank

Faculty Articles and Other Publications

In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent …

The Empirical Judiciary, A. Christopher Bryant

Faculty Articles and Other Publications

This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts …

Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no …

Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant

Faculty Articles and Other Publications

In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on …

The Third Death Of Federalism, A. Christopher Bryant

Faculty Articles and Other Publications

Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …

Prudential Standing And The Dormant Commerce Clause: Why The 'Zone Of Interests' Test Should Not Apply To Constitutional Cases, Bradford Mank

Faculty Articles and Other Publications

In a unique decision, the Fifth Circuit in National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority (NSWMA) used the prudential zone of interests standing test to bar the plaintiffs, who met constitutional standing requirements, from filing a facial, per se challenge under the dormant Commerce Clause. Six Mississippi counties and cities that are members of the Pine Belt Regional Solid Waste Management Authority (the Authority) had enacted flow control ordinances that required all solid waste collected in their six jurisdictions be sent to the Authority's facilities, and, thus, prohibited the export of waste to alternative, …

Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy

Faculty Articles and Other Publications

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …

Suing Under §1983: The Future After Gonzaga V. Doe, Bradford Mank

Faculty Articles and Other Publications

In 2002, the Supreme Court in Gonzaga University v. Doe held that the nondisclosure provisions of the Family Educational Rights and Privacy Act (FERPA) did not establish an individual right enforceable through 42 U.S.C. §1983. Chief Justice Rehnquist's requirement of clear and unambiguous proof that Congress intended to establish an individual right on behalf of a class including the plaintiff placed an additional burden on plaintiffs by effectively demanding proof that Congress would have wanted thousands of private suits. The requirement eroded the Court's precedent emphasizing the presumptive enforcement of federal statutory rights through §1983. This Article will focus on …

Stopping Time: The Pro-Slavery And 'Irrevocable' Thirteenth Amendment, A. Christopher Bryant

Faculty Articles and Other Publications

In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even ratified the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern …

Quirin Revisited, A. Christopher Bryant, Carl Tobias

Faculty Articles and Other Publications

In November 2001 President George W. Bush promulgated an Executive Order, premised on Ex Parte Quirin, that authorized the establishment of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. This article finds that the profound growth of federal habeas corpus over the last sixty years and the quite narrow holding in Quirin's ultimate determination must guide contemporary application of the precedent. Also, it concludes that federal courts have power not only to assess military commissions' validity in the abstract …

Are Title Vi's Disparate Impact Regulations Valid?, Bradford Mank

Faculty Articles and Other Publications

This Essay, however, contends that section 602 disparate impact regulations in Tide VI are valid because Congress has implicitly sanctioned their creation, and explicitly approved them in subsequent related statutes.

Part II of this Essay discusses the legislative history of Tide VI, which suggests that Congress intended to give administrative agencies discretion to define "discrimination" in their Tide VI regulations as prohibiting either intentional conduct or actions having disparate impacts against racial minorities as long as the President approved such rules.

Part III illustrates that five different Congresses have enacted four subsequent related statutes that explicitly incorporate Tide VI disparate …

Legal Context: Reading Statutes In Light Of Prevailing Legal Precedent, Bradford Mank

Faculty Articles and Other Publications

An important question is when judges should consider contextual evidence about the meaning of a statute. Judges usually will read a statute's text in light of judicial precedent prevailing at the time of its enactment to understand the contemporary meaning of various words or phrases in the statute.' A more difficult issue is whether courts should consider contemporary judicial context if a statute's text is silent about an issue. The use of contemporary context to imply statutory meaning has been especially controversial where the issue is whether courts should imply a private right of action.

Youngstown Revisited, A. Christopher Bryant, Carl Tobias

Faculty Articles and Other Publications

In 1952, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure of the nation's steel mills to support United States participation in the Korean conflict, but the Supreme Court held that Truman lacked any power to seize the property in Youngstown Sheet & Tube Co. v. Sawyer. In 2001, President George W. Bush promulgated an Executive Order that authorized trial by military commissions of non-U.S. citizens whom the American government suspects of terrorism in domestic cases and concomitantly denied these persons access to the federal courts. This article undertakes an analysis of the Bush Executive …

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite …

Remanding To Congress: The Supreme Court's New ʺOn The Recordʺ Constitutional Review Of Federal Statutes, A. Christopher Bryant, Timothy J. Simeone

Faculty Articles and Other Publications

In recent years, the fate of federal statutes has increasingly turned on the contents of their formal legislative records. The Supreme Court has shown a new willingness to find statutes unconstitutional because their legislative records do not support the factual judgments that justify congressional action. In this Article, Professors Bryant and Simeone trace the development of the trend toward increased judicial scrutiny of legislative records in recent Supreme Court rulings on the constitutionality of federal statutes. They then critique the Court's new approach, arguing that it is not only inconsistent with precedent, but also fundamentally ill advised, most importantly because …

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations and instead …

Taming Terrorists But Not "Natural Born Killers", S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article will explore the possibility of shifting or sharing the liability
stemming from criminal activities to those who provide detailed directions on
how to commit those acts, when the publication in question has no other
redeeming value. This Article concludes that in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others.

Part I of this Article reviews the First Amendment and discusses the Brandenburg test and its potential application to situations involving speech
advocating socially harmful activity. Part II …

Recalibrating The Cost Of Harm Advocacy: Getting Beyond Brandenburg, S. Elizabeth Malloy, Ronald Krotoszynski Jr

Faculty Articles and Other Publications

This Article explores the possibility of shifting the cost of antisocial acts to artists, writers, and musicians when individuals decide to act on a creative artist's suggestions or, in some cases, detailed directions. The Article concludes that, at least in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others and proposes the creation of a new category of unprotected speech activity called Harm Advocacy.

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …

The Look Within: Property, Capacity, And Suffrage In Nineteenth-Century America, Jacob Katz Cogan

Faculty Articles and Other Publications

This Note looks at the trajectory of suffrage reform from the late eighteenth century to the adoption of the Fifteenth Amendment and argues that reformers were obsessed with the inner qualities of persons. Whereas the eighteenth century had located a person's capacity for political participation externally (in material things, such as property), the nineteenth century found these qualities internally (in innate and heritable traits, such as intelligence). To chart the transformation, this Note examines the debates over suffrage in the state constitutional conventions of the late eighteenth and nineteenth centuries, as well as contemporaneous commentaries.

Part I will describe the …

Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank

Faculty Articles and Other Publications

This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the …

Taking Our Actual Constitution Seriously, Thomas D. Eisele

Faculty Articles and Other Publications

In this review, by concentrating on the general aim of Dworkin's book, I hope to contribute to the discussion this book is sure to generate. What does the "moral reading" of our Constitution amount to, and what alternative do we have to endorsing such a reading? I ask these questions from what I would call a jurisprudential
perspective. For, while I do teach Jurisprudence, I do not teach Constitutional Law, other than some constitutional law themes that find their way into my Property and Wills & Trusts courses. Accordingly, I am not well placed to review the details or
the …

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank

Faculty Articles and Other Publications

This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.