Law Commons^™

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller

All Faculty Scholarship

Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA's actions, and the federal government's support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA's actions could be constrained by the Constitution. While it is clear that USADA has very close ties to the federal …

'"You Have Been In Afghanistan": A Discourse On The Van Alstyne Method, Garrett Epps

All Faculty Scholarship

This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool …

A Brief History Of The Fifth Amendment Guarantee Against Double Jeopardy, David S. Rudstein

All Faculty Scholarship

No abstract provided.

Belton Redux: Re-Evaluating Belton's Per Se Rule Governing The Search Of An Automobile Incident To An Arrest, David S. Rudstein

All Faculty Scholarship

No abstract provided.

The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen

All Faculty Scholarship

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

The Pledge As Sacred Political Ritual, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Running In Place: The Paradox Of Expanding Rights And Restricted Remedies, David Rudovsky

All Faculty Scholarship

No abstract provided.

Constitutional Calcification: How The Law Becomes What The Court Does, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.

Constitutional Dialogue And The Civil Rights Act Of 1964, Joel K. Goldstein

All Faculty Scholarship

The Civil Rights Act of 1964 [1] represented a seminal legislative accomplishment of the twentieth century. Its eleven titles addressed racial discrimination in voting (Title I), public accommodations (Title II), public facilities (Title III), public education (Title IV), publicly financed programs (Title VI) and employment (Title VII).[2] It sought to remedy legislatively the Jim Crow laws and practices that had long contributed to making blacks second-class citizens in America and it provided the Executive Branch tools, especially in Title III and VI, to help implement Brown v. Board of Education.[3] In view of the bill’s focus on racial discrimination, one …

"Sovereignty" Issues And The Church Bankruptcy Cases, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

Managing Gerrymandering, Mitchell N. Berman

All Faculty Scholarship

Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …

Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Architectural Censorship And The Fcc, Christopher S. Yoo

All Faculty Scholarship

Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …

Originalism And Formalism In Criminal Procedure: The Triumph Of Justice Scalia, The Unlikely Friend Of Criminal Defendants?, Stephanos Bibas

All Faculty Scholarship

In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. …

The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo

All Faculty Scholarship

Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …

Resolving Renvoi: The Bewitchment Of Our Intelligence By Means Of Language, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Guantanamo And The Conflict Of Laws: Rasul And Beyond, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.