Law Commons^™

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly …

Shall The Twain Never Meet? Competing Narratives And Discourses Of The Rule Of Law In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This article aims to assess the role played by the rule of law in discourse by critics of the Singapore Government’s policies and in the Government’s responses to such criticisms. It argues that in the past the two narratives clashed over conceptions of the rule of law, but there is now evidence of convergence of thinking as regards the need to protect human rights, though not necessarily as to how the balance between rights and other public interests should be struck. The article also examines why the rule of law must be regarded as a constitutional doctrine in Singapore, the …

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

All Faculty Scholarship

Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …

Reconstruction And Resistance, Kermit Roosevelt Iii

All Faculty Scholarship

This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin …

Separate But Equal: Miranda's Rights To Silence And Counsel, Steven P. Grossman

All Faculty Scholarship

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda …

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Akron Law Faculty Publications

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

The Legal Significance Of Adolescent Development On The Right To Counsel: Establishing The Constitutional Right To Counsel For Teens In Child Welfare Matters And Assuring A Meaningful Right To Counsel In Delinquency Matters, Michael J. Dale, Jennifer K. Pokempner, Riya Saha Shah, Mark F. Houldin, Robert G. Schwartz

Faculty Scholarship

No abstract provided.

The Bin Laden Exception, Erik Luna

Scholarly Articles

Osama bin Laden's demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the "war on terror," with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism-related fears have distorted the people's risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and …

Law's Public/Private Structure, Christian Turner

Scholarly Works

Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside the state action doctrine in Constitutional Law. To ignore this distinction, however, is to miss the most fundamental sorting criterion in our law. Distinguishing whether public or private entities control (a) law creation and definition and (b) prosecution leads to a simple yet powerful taxonomy of legal systems. The taxonomy characterizes legal systems in terms of control over decisionmaking by our most basic institutional forms: the public and private. Thus, the proper categorization of laws within the system, for example whether a policy should be …

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff

Faculty Scholarship

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into structural federalism analysis. The breadth and depth of scholarly criticism on this point is surprising, however, given that judges today frequently choose indirect methods for protecting substantive constitutional values, including structural and process-based methods of the kinds at issue in the ACA litigation. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another …

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Reforming The Right To Legal Counsel In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This is an opinion prepared for the Criminal Law Committee of the Law Society of Singapore on an arrested person’s right to legal counsel in Singapore. Specifically, it deals with the following: (1) it summarizes pertinent aspects of the law relating to the right to legal counsel in Singapore; (2) it surveys a number of ASEAN and Commonwealth jurisdictions to determine how long after apprehension the right to counsel is generally accorded to arrested persons, and compares the legal position in these jurisdictions to the situation in Singapore; and (3) it examines two rights ancillary to the right to legal …

Low Expectations: How Changing Expectations Of Privacy Can Erode Fourth Amendment Protection And A Proposed Solution, Teri Dobbins Baxter

Scholarly Works

Technology has changed the lives of every American, but it has revolutionized the way that young people socialize and become socialized. The increasing use of technology to interact with their peers and shape their identities has led to a change in the way personal information is shared and the privacy expectations that are held with respect to that information. Various studies have found that, in general, younger generations have lower privacy expectations than their older counterparts. This Article considers how these changing attitudes towards privacy among youth have the potential to erode Fourth Amendment protection for everyone. The Article then …

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …

Foreign Precedents And The Global Canon: A Preliminary Exploration, Noga Morag-Levine, Barbara Bean

Schmooze 'tickets'

No abstract provided.

Indentifying The Canon From The Anticanon, Haider Ala Hamoudi

Schmooze 'tickets'

No abstract provided.

Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank

Faculty Articles and Other Publications

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Faculty Articles and Other Publications

In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell's was that such abuse of language - which in his novel he labeled "Newspeak"-would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court's June 28 decision both …

The End Of "One Hand": The Egyptian Constitutional Declaration And The Rift Between The "People" And The Supreme Council Of The Armed Forces, Kristen A. Stilt

Faculty Working Papers

By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution's antagonist. "The army and the people are one" was a common slogan in the early days following Mubarak's ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against protestors continued …

A Tort Statute, With Aliens And Pirates, Eugene Kontorovich

Faculty Working Papers

The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute -- namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford

Faculty Scholarship

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …

Big Brother Or Little Brother? Surrendering Seizure Privacy For The Benefits Of Communication Technology, José F. Anderson

All Faculty Scholarship

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

Respect And Contempt In Constitutional Law, Or, Is Jack Balkin Heartbreaking?, Andrew M. Koppelman

Faculty Working Papers

How many constitutions have we? Part of what we hope for from constitutional law is that we be united, despite our political differences, by a unifying political charter. John Rawls speaks for many when he writes that a well-ordered society "is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice."

Jack Balkin argues that we have to give up on the Rawlsian aspiration, and learn to live in a world where, at a fundamental level, our fellow citizens are strange to us. They believe in different principles than …

Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article …

Why Crime Severity Analysis Is Not Reasonable, Christopher Slobogin, Jeffrey Bellin, Et Al.

Vanderbilt Law School Faculty Publications

Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place. In pursuit of this objective, his article provides the best attempt to date at dealing with the difficult issue of separating serious from not-so serious crimes (he ends up with three categories—grave, serious and minor. He then makes the enticing argument that calibrating the degree of Fourth Amendment protection according …

Predictive Policing And Reasonable Suspicion, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current …

The Market As A Legal Concept, Justin Desautels-Stein

Publications

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images …