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Series

Constitutional Law

2011

Discipline
Institution
Publication

Articles 1 - 30 of 44

Full-Text Articles in Law

E-Race-Ing Gender: The Racial Construction Of Prison Rape, Kim S. Buchanan Nov 2011

E-Race-Ing Gender: The Racial Construction Of Prison Rape, Kim S. Buchanan

University of Southern California Legal Studies Working Paper Series

Prison rape is a form of gender violence. Men’s prisons institutionalize a toxic form of masculinity when they foster homophobia, physical violence and an institutional culture that requires inmates to prove their masculinity by fighting. Staff and inmate abusers alike target small, young, effeminate, gay, bisexual and transgender inmates. According to recent nationwide survey data, the two factors that most strongly predict an inmate’s risk of sexual abuse are (1) prior sexual victimization, and (2) gay, bisexual or transgender identity. Nonetheless, prison rape continues to be understood in accordance with an inaccurate stereotype that it is typically black-on-white ...


Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock Nov 2011

Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock

Faculty Scholarship

Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to ...


An Anthem For Ows?, Timothy Zick Oct 2011

An Anthem For Ows?, Timothy Zick

Popular Media

No abstract provided.


Ows, Discourse, And Narratives, Timothy Zick Oct 2011

Ows, Discourse, And Narratives, Timothy Zick

Popular Media

No abstract provided.


Ows And The Constitution, Timothy Zick Oct 2011

Ows And The Constitution, Timothy Zick

Popular Media

No abstract provided.


Our Exceptional Constitution, Timothy Zick Oct 2011

Our Exceptional Constitution, Timothy Zick

Popular Media

No abstract provided.


Trans-Border Exclusion And Execution, Timothy Zick Oct 2011

Trans-Border Exclusion And Execution, Timothy Zick

Popular Media

No abstract provided.


An Institutional Conception Of Authority, Andrei Marmor Sep 2011

An Institutional Conception Of Authority, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

The essay develops a conception of practical authorities that ties their legitimacy to the particular nature of the social practice or institution in which practical authorities invariably operate, and the terms of the subjects’ participation in that practice. The main argument of the paper draws on the distinction between what it takes to have practical authority and what would make it legitimate. The general idea is that what it takes to have practical authority is always determined by a social or institutional practice, and thus the legitimacy of any given authority crucially depends on the nature of the practice and ...


Teaching Values, Teaching Stereotypes: Sex Ed And Indoctrination In Public Schools, Jennifer S. Hendricks Sep 2011

Teaching Values, Teaching Stereotypes: Sex Ed And Indoctrination In Public Schools, Jennifer S. Hendricks

College of Law Faculty Scholarship

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: “If You Don’t Aim to Please, Don’t Dress to Tease,” and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer (Jennifer L. Greenblatt, 14 TEX. J. ON C.L. & C.R. 1 (2008)). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands.

This Article first describes the ways in which teaching sex stereotypes may affect children, highlighting the need for further empirical research in this area. Second, it critiques the extant feminist legal response to gender-biased Sex Ed curricula, particularly the use of precedent dealing with governmental perpetuation of stereotypes; those precedents cannot be incorporated wholesale into this context. Finally, to correct this analytical gap, this Article connects the Sex Ed issue to the existing scholarly literature on indoctrination of schoolchildren, a literature that has hooks in both equal protection and the first amendment ...


Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks Sep 2011

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

College of Law Faculty Scholarship

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the ...


Book Review: Saving Law Reviews From Political Scientists, Benjamin H. Barton Sep 2011

Book Review: Saving Law Reviews From Political Scientists, Benjamin H. Barton

College of Law Faculty Scholarship

This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only ...


Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini Aug 2011

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

School of Law Faculty Publications and Presentations

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That ...


Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot Aug 2011

Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot

Working Paper Series

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have ...


Will And Principle, Rebecca L. Brown Jul 2011

Will And Principle, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

In his book, The Will of the People, Barry Friedman documents a long‐term correspondence between popular opinion and Supreme Court decision‐making. He infers from this correspondence that the Court responds to popular will and that the public, in turn, seeks to “discipline” the Court if it goes too far astray. Thus, he reasons, the Court gains legitimacy by not being counter‐majoritarian in any meaningful sense. This comment, prepared for a symposium on the book, argues that the interpretation of the facts is faulty because it leaves out any role for principle in constitutional interpretation—or indeed, for ...


Assisted Living For The Constitution, Rebecca L. Brown Jul 2011

Assisted Living For The Constitution, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

David Strauss’s wonderful book, The Living Constitution, posits that constitutional interpretation can gain legitimacy by analogy to the common law. This comment argues that the analogy, while plausible and helpful, is not perfect and that the imperfection undermines the claim to legitimacy. The analogy breaks down when it comes to the kinds of principle that are employed under the two types of adjudication. The common law develops principle from the bottom up, by capturing customs and practices that have already gained wide acceptance, while constitutional interpretation develops principle by resort to the abstract textual references in the Constitution, bolstered ...


Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle May 2011

Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I recount John Locke’s 1689 Letter Concerning Toleration and explain how religious liberty continues to rest on Lockean and related justifications. These various justifications depend in part on religious-moral reasoning (both Christian and non-Christian) and in part on political-pragmatic considerations. I then discuss recent and ongoing developments in the American religious landscape, including a radical increase in religious diversity, the modernization of traditional faiths, the individualization or "spiritualization" of religion, and the increasing secularization of individual belief structures. I suggest that these developments, over time, may seriously threaten the underlying religious-moral and political-pragmatic foundations of religious ...


Framing The Fourth, Tracey Maclin Apr 2011

Framing The Fourth, Tracey Maclin

Faculty Scholarship

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth ...


An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton Mar 2011

An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton

College of Law Faculty Scholarship

A proper understanding of the nature of the inherent powers begins with separating whether the judiciary has any constitutional power to overrule Congress from the judiciary’s power to act in the absence of congressional action, i.e. in the interstices of federal statutes and rules. Separating out these two very different types of powers helps clarify that the inherent powers of federal courts are actually both broader and shallower than have been previously thought: Congress has near plenary authority in this area, but the courts have a great deal of leeway to act when Congress has not.

An examination ...


The Tea Party And The Constitution, Christopher W. Schmidt Mar 2011

The Tea Party And The Constitution, Christopher W. Schmidt

All Faculty Scholarship

This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined ...


Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas Mar 2011

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation ...


Law, History, And Feminism, Tracy A. Thomas Mar 2011

Law, History, And Feminism, Tracy A. Thomas

Akron Law Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history.

The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the ...


The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan Feb 2011

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan

Working Paper Series

Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no ...


When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search, Priscilla Smith, Nabiha Syed, Albert Wong, David Thaw Feb 2011

When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search, Priscilla Smith, Nabiha Syed, Albert Wong, David Thaw

Lecturer and Other Affiliate Scholarship Series

The use of GPS surveillance technology for prolonged automated surveillance of American citizens is proliferating, and a direct split between the Ninth and D.C. Circuits on whether warrants are required under the Fourth Amendment for such use of GPS technology is bringing the issue to a head in the Supreme Court. A Petition for Certiorari is pending in the Ninth Circuit case which held that warrants are not required, and a second Petition is likely from the Government in the D.C. Circuit case holding that warrants are required. In this paper, we argue first, that where a technology ...


The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman Jan 2011

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes ...


Popular Constitutionalism On The Right: Lessons From The Tea Party, Christopher W. Schmidt Jan 2011

Popular Constitutionalism On The Right: Lessons From The Tea Party, Christopher W. Schmidt

All Faculty Scholarship

In this Article, I consider the lessons that the Tea Party offers for scholars of popular constitutionalism. Specifically, I argue that the experience of the Tea Party should spark a reconsideration of some assumptions that tend to drive much of the interest in popular constitutionalism. Some who have embraced popular constitutionalism seem to assume that popular constitutional mobilization is a vehicle particularly well suited for advancing progressive constitutional claims. Alternately, some have assumed that popular constitutionalism has no particular ideological or partisan valence - that it is basically a neutral vehicle for advancing constitution claims of all kinds. But the lessons ...


Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander Jan 2011

Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander

Faculty Working Papers

Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to ...


Phony Originalism And The Establishment Clause, Andrew M. Koppelman Jan 2011

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.


Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn Jan 2011

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn

Akron Law Publications

The concept of “popular sovereignty” is not a simple, singular, unified concept; instead, as it has developed in the United States, popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government ...


Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard Aynes Jan 2011

Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard Aynes

Akron Law Publications

This article examines the opinion of the Court in McDonald v. Chicago and its implications for the future. The author participated as a party-amicus in the case and an article he authored in 1993 was cited by the Court.

Using a concept that others have applied in other situations, this paper suggests that Chicago was a “outlier” and that this case simply involved reigning in a maverick outlier. While the paper finds Justice Thomas’s concurring opinion (with the exception of dicta on the establishment clause) being the most faithful to the meaning, intention, and public understanding of the 14th ...


Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins Jan 2011

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Faculty Publications

No abstract provided.