Law Commons^™

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

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In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

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I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran

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In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.

The Cost Of The Text, Richard A. Primus

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Christopher Serkin and Nelson Tebbe's Is the Constitution Special?explores many facets of constitutional interpretation. I will focus here on their observation that constitutional interpretation is "less textual" than statutory interpretation. I place the expression "less textual" in quotation marks because "textual" could mean many things, such that it would often be problematic to characterize one interpretive exercise as more or less textual than another. In Serkin and Tebbe's view, as I understand it, mainstream constitutional interpretation is "less textual " than statutory decisionmaking in that it is less constrained by the words of particular enacted clauses. As a convenient …

Debating Is The Constitution Special?, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe

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In 1890, Louis Brandeis wrote The Right to Privacy. Within a matter of years, the courts began adopting his theory, creating a newly articulated legal right. This article likely represented the high-water mark of legal academia in terms of real world impact. In recent years, the academy has lost much of its relevance. Chief Justice Roberts ridiculed academic work, suggesting that legal scholarship has become esoteric and irrelevant. This should not be the case. The quality of legal scholars is higher than it has ever been—young scholars now often enter the academy with doctoral degrees in related fields. Likewise, technology …

The Constitutional Constant, Richard A. Primus

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According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …

Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel

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No abstract provided.

From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold

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Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …

The Miranda Case Fifty Years Later, Yale Kamisar

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A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus

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Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate …

Federalism And The End Of Obamacare, Nicholas Bagley

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Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law …

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

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Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? In Quill, the Court held that, under the dormant Commerce Clause of the U.S. Constitution, the states cannot impose the obligation to collect sales taxes on out-of-state vendors which lack physical presence in the taxing state. As internet commerce has grown, Quill’s physical presence test has severely hampered the states’ ability to enforce their sales taxes.

Much of the Supreme Court’s case law suggests that, under the banner of stare decisis, the Court should not overturn Quill. This case law indicates that it is Congress’s …

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

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Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

Potential Life In The Doctrine, Leah Litman

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In their article, Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin seek to shore up the doctrinal basis for a woman’s constitutional right to end her pregnancy. While Chemerinsky and Goodwin are partly concerned about the status of abortion rights in the United States because of President Donald Trump’s promise prior to taking office to appoint Justices to the Supreme Court who will overturn Roe v. Wade, they also maintain that some of the threat to abortion rights arises from an uncomfortable tension in the doctrine that recognizes states’ interest in potential life. I agree with Chemerinsky and …

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

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First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

The Gibbons Fallacy, Richard A. Primus

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In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

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False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …

Doe V. University Of Michigan: Free Speech On Campus 25 Years Later, Leonard M. Niehoff

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I would like to use as the launching pad for my remarks today the 1989 federal district court decision in Doe v. University of Michigan. Doe is the seminal case on campus speech codes and it just recently passed its twenty-fifth anniversary. I thought this symposium would be a good occasion to look back, see where we were, assess where we are, and ask whether we have made any progress. Spoiler alert: the news is not good.

Public Employee Speech: Answering The Unanswered And Related Questions In Lane V. Franks, John E. Rumel

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No abstract provided.

Civil Asset Forfeiture Abuses: Can State Legislation Solve The Problem?, David Pimentel

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No abstract provided.

Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel

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No abstract provided.

Civil Asset Forfeiture Abuses: Can State Legislation Solve The Problem?, David Pimentel

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No abstract provided.

Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit

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This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …

Positive Education Federalism: The Promise Of Equality After The Every Student Succeeds Act, Christian Sundquist

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This Article examines the nature of the federal role in public education following the recent passage of the Every Student Succeeds Act in December 2015 (“ESSA”). Public education was largely unregulated for much of our Nation’s history, with the federal government deferring to states’ traditional “police powers” despite the de jure entrenchment of racial and class-based inequalities. A nascent policy of education federalism finally took root following the Brown v. Board decision and the enactment of the Elementary and Secondary School Act (“ESEA”) with the explicit purpose of eradicating such educational inequality.

This timely Article argues that current federal education …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

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This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Inclusionary Takings Legislation, Gerald S. Dickinson

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This Article proposes an alternative post-Kelo legislative reform effort called “inclusionary takings.” Like inclusionary zoning legislation, inclusionary takings legislation would trigger remedial affordable housing action to mitigate the phenomenon of exclusionary condemnations in dense urban areas and declining suburban localities. An inclusionary takings statute would also mandate that local municipalities and private developers provide affordable housing in new developments benefiting from eminent domain takings. Such a statute may ameliorate the phenomenon of exclusionary condemnations in dense urban areas that displaces low-income families from urban neighborhoods. An inclusionary taking, like inclusionary zoning, in other words, requires affordable housing contributions from developers …

Supreme Court Supremacy In A Time Of Turmoil, Richard Henry Seamon

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Last term's decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system's inadequate response to it. In James, the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney's fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts' well-settled duty to obey the Court's decisions on federal law, this article shows that the duty rests …

First Amendment Right To A Remedy, Benjamin Plener Cover

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Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion …