Law Commons^™

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho

Dale E Ho

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

Models Of Religious Freedom, Marcel Stuessi Swiss Human Rights Lawyer

Marcel Stüssi

MODELS OF RELIGIOUS FREEDOM

The Swiss, US American, and Syrian models are in this thesis illustrated by way of three representations. The Analytical Representation comprises more than statements of posi-tive law or mechanical comparison. Each chapter is introduced by thought-forms predominant in the respective legal culture. The objective of the Methodological Representation is to investigate the logic and legitimate pattern by which the Swiss and US American judiciary meth-odologically come to the conclusion that an alleged governmental inter-ference is covered under the right to religious freedom. The last dimen-sion, which is the Eclectic Representation, pursues a dual aim. Firstly, the …

Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack

Malla Pollack

“Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Ian C Bartrum

This short piece discusses some doctrinal and theoretical implications of the Court's recent decision.

Treason As A State Crime, Thomas Wilson Dorr, Ex Parte Dorr, Dean A. Cantalupo

Dean A Cantalupo Esq.

2010 version: For Thomas Wilson Dorr, Treason was a State crime. It is understood by most people that Treason within the United States Constitution is a crime against the national authority, the United States, the Union. Notwithstanding that common understanding, Treason within the United States Constitution is also a State crime, and this is made clear by the plain language of the United States Constitution, as well as many cases of Treason against a State that may be found in the American case reporters. The fundamental textual authority within the Constitution that empowers the United States federal government with legitimate …

The Frontier Of Affirmative Action: Employment Preferences And Diversity In The Private Workplace, Corey A. Ciocchetti, John Holcomb

Corey A Ciocchetti

The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backward-looking to forward-looking. The Remedial Rationale – …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler

Aaron J Shuler

Abstract Scholars have written about the duality of the substantive due process and equal protection doctrines and described how they have worked in tandem, although many academics have focused on, or outright called for, a preference for the use of the equal protection clause. Another contingent of the academic community, however, has discussed the favored use of substantive due process in the last fifty years in providing equal treatment for all groups by ferreting out discrimination against marginalized minorities. Scholars have also separately alluded to substantive due process’ ability to protect the most existential of liberties. This works seeks to …

Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello

Adam Lamparello

No abstract provided.

Incorporating The Supreme Court's Eighth Amendment Framework Into Substantive Due Process Jurisprudence Through The Introduction Of A Contingent-Based And Legislatively-Driven Constitutional Theory, Adam Lamparello

Adam Lamparello

No abstract provided.

Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara

Martin H Redish

It has long been established that as a general rule, discovery costs are to remain with the party from whom discovery has been sought. While courts have authority to "shift" costs in an individual instance, the presumption against such an alteration in traditional practice is quite strong. Yet at no point did the drafters of the original Federal Rules of Civil Procedure ever make an explicit decision to allocate discovery costs in this manner. Nor, apparently, did they (or anyone since) ever explain why such an allocation choice is to be made in the first place. As a result, our …

No Good Deed Goes Unpublished: Precedent-Stripping And The Need For A New Prophylactic Rule, Edward Cantu

Edward Cantu

This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right—that is, to create a presumption of constitutional injury without proof of it—when such is the only effective way of protecting …

A Loss For Words: "Religion" In The First Amendment, Mason Binkley, J.D.

Mason Binkley, Esq.

No abstract provided.

Violent Crimes And Known Associates: The Residual Clause Of The Armed Career Criminal Act, David C. Holman

David Holman

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (ACCA). The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner—instead of based on the statutory crimes of which they were actually convicted. Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway.

The courts’ application of …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enriquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and demonstrates that …

The Death Penalty On Trial, Linus Koh

Linus Koh

No abstract provided.

Noncitizens And Citizens United, James Ianelli

James Ianelli

No abstract provided.

The Original Scope Of The Congressional Power To Regulate Elections, Robert G. Natelson

Robert G. Natelson

Courts testing the constitutionality of federal campaign finance laws usually focus on First Amendment issues. More fundamental, however, is the question of whether campaign finance laws are within Congress’s enumerated power to regulate the “Times, Places and Manner of holding Elections.” This Article is an objective examination into the intended scope of this congressional power, using numerous sources overlooked by other legal writers. The Article concludes that the intended scope of the power was wide enough to authorize most modern congressional election statutes, but not wide enough to support modern federal campaign finance laws.

Graham V. Florida: Justice Kennedy's Vision Of Childhood And The Role Of Judges, Tamar R. Birckhead

Tamar R Birckhead

This short essay examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This essay argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but also in Establishment Clause cases set …

Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois

Goutam U Jois

In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. …

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Ian C Bartrum

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional theory. …

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that might accomplish …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a …

The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer

David B Kopel

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about …

A New Global Constitutional Order?, David Schneiderman

David Schneiderman

Accompanying the rise of new transnational legal rules and institutions intended to promote global economic integration are questions about the linkages between transnational legality and constitutional law. In what ways does transnational economic law mimic features of national constitutional law? Does transnational law complement in some ways or supersede in other ways what we typically describe as constitutional law? To these questions we can now add the following: are transnational rules and institutions a proper subject of study for comparative constitutionalists? This chapter makes a case for the incorporation of forms of transnational legality into comparative constitutional studies. Taking as …

Promoting Equality, Black Economic Empowerment, And The Future Of Investment Rules, David Schneiderman

David Schneiderman

It generally is assumed that rules to protect and promote foreign investment are sufficiently flexible to address the specific needs of developing and less developed countries. What happens, however, when the typical model of investment treaty rubs against national constitutional commitments, such as those mandating the promotion of equality in post-apartheid South Africa? This paper explores such tensions in the context of free trade and investment negotiations between the United States and the South African Customs Union. South Africa’s plan to generate a new black middle class via a program of Black Economic Empowerment, it turns out, was a contributing …

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

Time To Bury The Shocks The Conscience Test, Rosalie Levinson

Rosalie Berger Levinson

The Supreme Court has acknowledged that "the Due Process Clause, like its forebear in the Magna Carta, was 'intended to secure the individual from the arbitrary exercise of the powers of government'...to prevent governmental power from being 'used for purposes of oppression.'"1 Historically, Magna Carta was aimed a·t limiting the power of the king. Today, substantive due process is invoked to challenge arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive power. …