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Series

Constitutional Law

2010

Discipline
Institution
Publication

Articles 1 - 30 of 39

Full-Text Articles in Law

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott Dec 2010

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Faculty Scholarship Series

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a ...


A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak Oct 2010

A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack ...


Section 7: Individual Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law Sep 2010

Section 7: Individual Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman Sep 2010

Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman

Popular Media

No abstract provided.


Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak Sep 2010

Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within ...


Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak Jul 2010

Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control ...


To Secure The Blessings, Ronald R. Garet Jul 2010

To Secure The Blessings, Ronald R. Garet

University of Southern California Legal Studies Working Paper Series

The Constitution’s Preamble states, in part: “We the people of the United States, in order to… secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” While the word “blessings” in this context might mean simply benefits, it might have a more specifically ethical and dispositional meaning, such as benefits for which we should be grateful. Those who favor an evangelical reading of the Constitution might further specify the ethical and dispositional meaning, so that “blessings” recalls God’s promise to Abraham and Israel and the relationship ...


The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak May 2010

The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This is a story about a case long forgotten. It was a case that needed to be forgotten, to safeguard the meaning of American justice. The case of “Death for a Dollar Ninety-Five” began one July night in Marion, Alabama, in 1957, and soon captured the attention of the world. It involved an African American man, a white woman, and the robbery of a small amount of change late in the evening. The conviction was swift and the penalty was death. International criticism soon rained down on the Alabama Governor and the American Secretary of State, leading to clemency and ...


Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod Mar 2010

Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod

All Faculty Scholarship

My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts. In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability. In Part III, I delve more deeply into the nature of supervisory liability and conclude that the ...


The Children's Rights Amendment And Family Law, Fergus Ryan Feb 2010

The Children's Rights Amendment And Family Law, Fergus Ryan

Other resources

This blog entry is part of a carnival blog posted to http://humanrightsinireland.wordpress.com/ It addresses the provisions of the proposed constitutional amendment on children's rights, as formulated by the Joint Oireachtas Committee on the Constitutional Amendment on Children, published in February 2010. This brief comment analyses the proposal, with particular reference to its potential impact on children in non-traditional family units.


Poll/Contest: What Shape Is The Constitution?, Aaron-Andrew P. Bruhl Feb 2010

Poll/Contest: What Shape Is The Constitution?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.


To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah Feb 2010

To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Law & Economics Working Papers

In Citizens United vs. FEC, the Supreme Court struck down a Federal ban on direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. The thesis of this Article is that by viewing Citizens United through the prism of theories about the corporate form, it is possible to understand why both the majority and the dissent departed from previous Supreme Court cases on the First Amendment rights of corporations, and to ...


Commerce, Jack M. Balkin Feb 2010

Commerce, Jack M. Balkin

Faculty Scholarship Series

This article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Non-originalists, in turn, point to these difficulties as a refutation of orignalist premises.

Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified “commerce” with the trade of commodities; originalists defending broad readings of federal ...


The Reconstruction Power, Jack M. Balkin Feb 2010

The Reconstruction Power, Jack M. Balkin

Faculty Scholarship Series

Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress's Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress's fears, limiting not only the scope of the Reconstruction Amendments but also Congress's powers to enforce them in decisions like United States v. Cruikshank and the Civil Rights ...


Book Review: Jeff Benedict's "Little Pink House": The Back Story Of The Kelo Case, George Lefcoe Jan 2010

Book Review: Jeff Benedict's "Little Pink House": The Back Story Of The Kelo Case, George Lefcoe

University of Southern California Legal Studies Working Paper Series

Little Pink House is a fast paced account by Jeff Benedict of the events surrounding the 2005 U.S. Supreme Court decision in Kelo v. City of New London. Along with tracking Benedict’s story line, this review also highlights some of the core legal and policy issues that are an important part of the story for law-trained readers. At the core of the tale is how Kelo and a handful of her neighbors challenged the New London Development Corporation’s (NLDC) use of eminent domain for the economic redevelopment of the Fort Trumbull neighborhood. A libertarian-inspired public interest law ...


Justice Souter On Government Speech, Sheldon Nahmod Jan 2010

Justice Souter On Government Speech, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.


Forced Labor, Revisited: The Thirteenth Amendment And Abortion, Andrew Koppelman Jan 2010

Forced Labor, Revisited: The Thirteenth Amendment And Abortion, Andrew Koppelman

Faculty Working Papers

Many recent works on the Thirteenth Amendment break new ground, deploying the amendment in new and creative ways. This is not one of them. I here restate an argument I made twenty years ago, defending abortion rights on the basis of the amendment. I then consider how the work was received, offer some amendments to the argument, and conclude with some reflections on how, perhaps, it can have more influence in the future.


Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton Jan 2010

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

College of Law Faculty Scholarship

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There ...


Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks Jan 2010

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

College of Law Faculty Scholarship

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court’s long struggle with the desegregation of public schools. This Article examines the decision’s implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent ...


Enforcing The Bill Of Rights Against The States: The History And The Future, Richard Aynes Jan 2010

Enforcing The Bill Of Rights Against The States: The History And The Future, Richard Aynes

Akron Law Publications

This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states.

It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman’s Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the ...


Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes Jan 2010

Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes

Akron Law Publications

The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question:

"Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses."

This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has ...


Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne Jan 2010

Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne

Faculty Publications

No abstract provided.


Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman Jan 2010

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

Law Faculty Publications

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign ...


Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr. Jan 2010

Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


The End Of Originalism, Jeffrey Shaman Jan 2010

The End Of Originalism, Jeffrey Shaman

College of Law Faculty

This essay maintains that originalism—the idea that the Constitution should be interpreted according to its original meaning--is nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court’s decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline.

Originalism is a radical departure from the Supreme Court’s well-established jurisprudence ...


Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee Jan 2010

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.


Voter Deception, Gilda R. Daniels Jan 2010

Voter Deception, Gilda R. Daniels

All Faculty Scholarship

In our recent electoral history, deceptive practices have been utilized to suppress votes in an attempt to affect election results. In most major elections, citizens endure warnings of arrest, deportation, and even violence if they attempt to vote. In many instances, these warnings are part of a larger scheme to suppress particular voters, whom I call “unwanted voters,” from exercising the franchise. Recent advancements in technology provide additional opportunities for persons to deceive voters, such as calls alerting citizens that Republicans (Whites) vote on Tuesday and Democrats vote (Blacks) on Wednesday. In spite of this resurgence of deception, the statutes ...


Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju Jan 2010

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju

Boston College Law School Faculty Papers

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order ...


Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky Jan 2010

Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called core speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the marketplace of ideas ...


The Political Economy Of Youngstown, Edward T. Swaine Jan 2010

The Political Economy Of Youngstown, Edward T. Swaine

GW Law Faculty Publications & Other Works

The time is ripe for a non-doctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective ...