Law Commons^™

The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji

The Ohio State University Moritz College of Law Working Paper Series

The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous “hanging chad” punch card. Yet the introduction of paperless technology, especially electronic “touchscreen” machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has …

Conceptualizing Blakely, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion …

The Collection Due Process Rights: A Misstep Or A Step In The Right Direction?, Leslie Book

Working Paper Series

This article defends one of the more controversial parts of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 98) the collection due process (CDP) provisions. CDP gives taxpayers the right to independent administrative and judicial review of IRS decisions to use its awesome administrative collection powers, powers that have long made the IRS a feared creditor.

Prior to CDP’s enactment, the IRS had the power to collect taxes from taxpayers without judicial review of administrative collection determinations. This power, atypical for creditors which often must get judicial approval for summary collection action, led many observers to …

Judicial Power & Civil Rights Reconsidered, David E. Bernstein, Ilya Somin

George Mason University School of Law Working Papers Series

Michael Klarman's "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality" is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did.

Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the …

The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith

University of San Diego Public Law and Legal Theory Research Paper Series

This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …

A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen

George Mason University School of Law Working Papers Series

Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of the Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under the rule of capture. The second results from Canadian Supreme Court case law recognizing and affirming “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” under Section 35(1) of the Constitution Act, 1982. This essay shows that the economics of property rights provides a joint solution to these crises that would promote the Canadian commonwealth by way of a privatization auction …

Wine Wars: The 21st Amendment And Discriminatory Bans To Direct Shipment Of Wine , Todd J. Zywicki

George Mason University School of Law Working Papers Series

This essay is actually a series of posts from the Volokh Conspiracy weblog (www.volokh.com) that discusses the policy and constitutional issues surrounding a question that the Supreme Court will hear this term, whether discriminatory barriers to the interstate direct shipment of wine are constitutional. Because of the timeliness of the issue, the essay is presented in this unusual and informal format so as to be available to the public more rapidly than through the traditional law review format. This essay” reviews the historical evidence and ratification history of the 21st Amendment, and concludes that the answer is unambiguously no.

The …

The Constitution In Two Dimensions: A Transaction Cost Analysis Of Constitutional Remedies. , Eugene Kontorovich

George Mason University School of Law Working Papers Series

This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner's consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both. …

Anthrax Hoaxes, Ira Robbins

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: "[Y]ou are a disgusting piece of dirt."' Judge Steven Shutter, a county judge in South Florida, used these words to describe a twenty- four-year-old woman whom he labeled a terrorist2 and who was condemned by the media.3 Aside from name-calling, Judge Shutter raised the woman's bail from $3,500 to $25,000 when he learned the nature of the offense, 'just in case" the woman might be able to afford the lower bond.4 Given the strength of Judge Shutter's animosity toward her, one might assume that Yasmin Kassima Sealey- Doe had provided assistance to the terrorists who attacked the World Trade …

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus

University of San Diego Public Law and Legal Theory Research Paper Series

“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …

Grutter's First Amendment, Paul Horwitz

University of San Diego Public Law and Legal Theory Research Paper Series

Most of the reaction to the Supreme Court's decision affirming the law school affirmative action policy at issue in Grutter v. Bollinger has focused on its Fourteenth Amendment implications. But Grutter also raises significant First Amendment issues. By reaffirming a First Amendment value of "educational autonomy," the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom, but for First Amendment jurisprudence generally. This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter.

Some of the consequences of the Court's …

Judges As Rulemakers, Larry A. Alexander, Emily Sherwin

University of San Diego Public Law and Legal Theory Research Paper Series

This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

The Hollowness Of The Harm Principle, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis

University of San Diego Public Law and Legal Theory Research Paper Series

In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

Generic Constitutional Law, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Working Paper Series

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection – which the article contends it is – …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

Working Paper Series

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

International Norms In Constitutional Law, Michael Wells

Scholarly Works

Whether the Supreme Court should look to international law in deciding constitutional issue depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers …

The Use Of International Sources In Constitutional Opinion, Daniel M. Bodansky

Scholarly Works

My argument for the use of international materials to interpret the Constitutional will proceed in four parts. First, I will argue that international law has a venerable history in constitutional interpretation. Second, I will argue that American courts and foreign courts are engaged in a common legal enterprise and could learn from one another. Third, I will argue that the text of certain constitutional provisions invites the use of international materials. Finally, I will argue that taking international opinion into account has strong pragmatic justifications.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Equality Without Tiers, Suzanne Goldberg

Rutgers Law School (Newark) Faculty Papers

No abstract provided.

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

University of San Diego Public Law and Legal Theory Research Paper Series

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators.

Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein …

Wiretapping's Fruits, The First Amendment, And The Paradigms Of Privacy, Bernard W. Bell

Rutgers Law School (Newark) Faculty Papers

No abstract provided.

Grutter Or Otherwise: Racial Preferences And Higher Education, Larry Alexander, Maimon Schwarzschild

University of San Diego Public Law and Legal Theory Research Paper Series

Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly …

Exporting The Constitution, Mark D. Rosen

All Faculty Scholarship

If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities …