Law Commons^™

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

All Faculty Scholarship

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the …

Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain

All Faculty Scholarship

This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The …

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

"You Crossed The Fog Line!" - Kansas, Pretext, And The Fourth Amendment, Melanie Wilson

Scholarly Works

This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using "fog-line" traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman

All Faculty Scholarship

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

All Faculty Scholarship

Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

Scholarly Works

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its first …

Outsourcing Democracy: Redefining The Public Private Partnership In Election Administration, Gilda R. Daniels

All Faculty Scholarship

“We are left with a system in which almost every state still outsources its elections to what are actually private organizations.”

Federal, state and local governments are deeply indebted to private organizations, political parties, candidates, and private individuals to assist it, inter alia, in registering voters, getting citizens to the ballot box through get out the vote campaigns (GOTV), assisting limited English proficient (LEP) citizens, and monitoring Election Day activities. In a recent Supreme Court case, Crawford v. Marion County, Justice Souter recognized that voting legislation has “two competing interests,” the fundamental right to vote and the need for governmental …

In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay

All Faculty Scholarship

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and the iconic, if …

Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt

Faculty Working Papers

This article examines the drafting process of the new Iraqi constitution, which took place in 2004 and 2005 as a result of the U.S. invasion of Iraq. It addresses the role of Islamic law in the Iraqi legal system prior to the invasion and considers how a new constitution may deal with the question and analyzes, based on Iraq's history, current situation, and the experience of other similar countries, how Islamic law may be retained or incorporated into the new Iraqi legal system. While the constitutional discussion is important, the Article also shows who debates over Islamic law in Iraq …

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

Harmful Speech And The Culture Of Indeterminacy, Anthony D'Amato

Faculty Working Papers

I advocate two propositions in this Essay: the constitutional law of at least one category of content regulation of free speech is indeterminate, and recognition of this indeterminacy has been and ought to continue to be the Supreme Court's decisional basis for protecting speech against content regulation. Milkovich is worth examining at some length, not only because of the Court's failure to come up with general guidelines (after all, pragmatic indeterminacy predicts that failure!), but also because what the Court did say cannot even guide the lower court on remand.

Appellate Review Of Social Facts In Constitutional Rights Cases, Caitlin E. Borgmann

Publications and Research

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts' findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except …

Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave

Publications

People v. Gonzales involved an issue that continues to divide lawyers, judges, scholars, politicians, as well as the general public: how best to protect individuals from law enforcement conduct that violates constitutional protections? This question is particularly controversial in the context of a criminal case, since the exclusion of illegally obtained evidence often results in the alleged criminal going free. In Gonzales, the California Supreme Court was asked to adopt the exclusionary rule as a remedy for violations of constitutional rights. A majority of California Supreme Court justices answered this in the negative. Justice Carter disagreed, and his analysis provided …

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Lovell Banks

Faculty Scholarship

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge.

Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …

Government Speech 2.0, Helen L. Norton, Danielle Keats Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Government Speech 2.0, Helen Norton, Danielle Keats Citron

Publications

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine--which recognizes "government speech" as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint--only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the …

Balancing Security And Liberty In Germany, Russell A. Miller

Scholarly Articles

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …

Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman

Law Faculty Scholarship

The United States Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and reaffirmed in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that absent conditions of confinement the Due Process Clause imposes no affirmative obligations upon government to protect an individual’s life, liberty, or property. These decisions reflect the Supreme Court’s broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. Like the constitutions of many other countries, state constitutions have charted a different course. Unlike their federal counterpart, state …

Testing Democracy: Marriage Equality, Citizen-Lawmaking And Constitutional Structure, Francisco Valdes

Articles

No abstract provided.

Which Came First The Parent Or The Child?, Mary P. Byrn, Jenni Vainik Ives

Faculty Scholarship

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to …

Catholicism And Constitutional Law: More Than Privacy In The Penumbras, Bill Piatt

Faculty Articles

No abstract provided.

Constitutional Authority And Subversion: Egypt's New Presidential Election System, Kristen Stilt

Faculty Working Papers

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to …

Constitutional Politics And Balanced Budgets, Nancy Staudt

Faculty Working Papers

Unbalanced budgets have sparked decades of debate among legislators, scholars, and the public at large. Although the controversy has abated somewhat in recent years, many continue to believe that Congress has a tendency to pursue a level of public debt that is both inefficient and unfair. Foremost among those who criticize the federal budgeting process are fiscal constitutionalists, a group of public choice scholars who believe the constitutional constraints are the only means by which the public will obtain protection from legislative fiscal irresponsibility. This article explores the public choice argument for a balanced budget amendment and argues that it …

Taxation Without Representation, Nancy Staudt

Faculty Working Papers

Poll taxes are unconstitutional and yet Americans continue to link political rights to economic status. When taxpayers claim, "We pay taxes and therefore should decide how public monies are spent," they claim a privileged position in society based on their monetary contributions to the state and federal fiscal position that, by implication, nontaxpaying Americans should not have. Not only do taxpayers claim they deserve special political privileges, but the law itself continues to couple political rights to taxpaying status in ways that legal scholars have largely left unexplored. This article examines a range of political benefits tied to the payment …

Aspects Of Deconstruction: The "Easy Case" Of The Under-Aged President, Anthony D'Amato

Faculty Working Papers

When the deconstructionist says that all cases are to some degree problematic, the mainstream legal scholar gleefully pulls out a favorite crystal-clear case and asserts "not this one!" Judging from the law review commentary, the most popular of these "easy cases" concerns the constitutional mandate that the President shall be at least thirty-five years of age. Deconstructionists say that all interpretation depends on context. Radical deconstructionists add that, because contexts can change, there can be no such thing as a single interpretation of any text that is absolute and unchanging for all time.

easy case, deconstruction in law, US Constitution …

A New Political Truth: Exposure To Sexually Violent Materials Causes Sexual Violence, Anthony D'Amato

Faculty Working Papers

The Meese Commission gave this nation a new political truth that in years to come will undoubtedly play an important role in federal or state efforts to restrict or suppress speech having pornographic content. Legislators, policymakers and the general public will quote and rely upon the Commission's key finding that exposure to sexually violent materials "bears a causal relationship" to acts of sexual violence, unaware that the principal drafter of the Report played down this confidence in a separately published academic essay.