Law Commons^™

When Natural Science Meets The Dismal Science, Stephanie Tai

Stephanie Tai

Both the natural sciences—such as ecology, biology, chemistry, and physics—and economics—the so-called “dismal science”— have become integral to contemporary governance. This article examines how the Supreme Court and appellate courts have taken into account developments in natural science and economics in evaluating Commerce Clause challenges to environmental laws, and applies this examination to the context of wetlands regulation. I present a descriptive claim: that courts, especially the Supreme Court, have already been incorporating new developments in science and economics in their Commerce Clause opinions; this use of developments in scientific and economic research, I contend, arises out of the empirical …

An Honest Mistake: How Consolidating The Circuits Could Define The Borders Of Honest Services Fraud, Jorge R. Delgado

Jorge R Delgado

No abstract provided.

Institutional Virtues And Constitutional Theory: Bracketing Disagreements About Justice, Kenneth D. Ward

Kenneth Ward

Recent arguments in constitutional theory have tended to focus on the institutional arrangements that respond to disagreements about justice. This essay distinguishes two forms these arguments take: claims of institutional virtue and structural claims. Claims of institutional virtue, in contrast to structural claims, do not depend on contested assumptions about justice and therefore address problems that follow from disagreements about justice without favoring one view over another. Moreover, claims of institutional virtue gain significance in conditions in which people continue to fight about what the Constitution means even after governmental institutions claim to settle them, conditions that seem to characterize …

Harvey Milk, Jane Roe, And James Brady: Why Civic Organizing Matters, Palma Joy Strand

palma joy strand

This Article presents a view of the civic underpinnings of law by examining how civic interaction or the lack of such interaction facilitates or inhibits sociolegal change. The Article begins with empirical observations of civic experience and engagement, which ground more general conclusions about the importance of civic relationships and civic networks as well as the way personal stories contribute to the creation of both. The Article then applies these conclusions to three currently contentious and unsettled issues: gay rights, abortion, and guns. As to gay rights, the “coming out” process identified with Harvey Milk has transformed the civic landscape, …

Public Funding Of Judicial Campaigns: The North Carolina Experience, Paul D. Carrington

Paul D. Carrington

This addresses the constitutional crises created in numerous states by Supreme Court decisions bearing on campaign finance and professional ethics of judges. North Carolina was the first state to employ public financing of judicial campaigns. This is an account of how that came to be and an evaluation of the North Carolina experience that may be especially instructive to those states that have recently enacted similar laws, most recently Wisconsin and West Virginia.

Deconstructing The First Reconstruction Act, Or Why The Former-Confederate States Never Legally Ratified The Fourteenth Amendment, Abraham M. Howland

Abraham M Howland

The First Reconstruction Act (passed on March 2, 1867) was a crucial piece of legislation in our nation's history that effectively forced the legislatures of ten former-confederate states to ratify the Fourteenth Amendment. This paper begins by presenting and evaluating four principle arguments against the constitutionality of the First Reconstruction Act. Following this analysis of the Act’s constitutionality, this paper proceeds to argue that even if none of these constitutional objections is found persuasive, then precisely because of the terms of the First Reconstruction Act itself, the former-confederate states could not have ratified the Fourteenth Amendment in accordance with the …

The Intrinsic Character Of Defamatory Content As Grounds For A Uniform Regime Of Proving Libel, Nat S. Stern

Nat S Stern

On two occasions the Supreme Court has intimated that plaintiffs in defamation suits do not bear the burden of proving falsity if the defendant is not a member of the media or if the speech addresses a matter of private concern. This Article argues that these potential limitations assign insufficient weight to factual falsity as an intrinsic property of actionable libel. Waiver of plaintiffs’ burden of proof where disputed speech does not involve a public concern, in particular, confuses threshold actionability with considerations relevant to defendants’ intent. Lower court decisions since Milkovich v. Lorain Journal Co., in which the Court …

Forget Privacy: The Warren Court’S Regulatory Revolution In Criminal Procedure, Eric J. Miller

Eric J. Miller

The standard story describing the Warren Court’s criminal procedure “rights revolution,” claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. Frightened by the popular backlash against high crime rates, a cowed Court in Terry v. Ohio shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were in fact two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry.

The standard story …

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

Jennifer S. Hendricks

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. …

The Facts About Ring V. Arizona And The Jury's Role In Capital Sentencing, Sam Kamin, Justin Marceau

Sam Kamin

When it was decided in 2002, Ring v. Arizona appeared to be a watershed in the way capital sentences are handed out in the United States: it overturned several states’ death penalty statutes and appeared to imperil many more. Ring announced that the rule of Apprendi v. New Jersey applied to capital sentencing and required that any fact necessary to the imposition of the death penalty be proven to a jury and beyond a reasonable doubt. Yet eight years after the case was decided, it is not clear what, if anything, Ring in fact demands of the states. Determining exactly …

Cultural Norms And Race Discrimination Standards: A Case Study In How The Two Diverge, Derek W. Black

Derek W. Black

The article analyzes the extent to which the current intentional race discrimination standard is consistent with the public’s understanding of discrimination. The analysis reveals that the public has a broader concept of discrimination than the courts. This finding is important because, as many scholars have argued, race and discrimination are not static concepts controlled by the courts. Rather, they are socially constructed concepts. Courts, however, have too often ignored social norms in arriving at race discrimination standards, limiting the conversation to themselves. While many in the academy have noted the Supreme Court’s disregard for social norms and cultural context in …

The Dormant Commerce Clause And Water Export: Toward A New Analytical Paradigm, Christine Klein

Christine A. Klein

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska. Determining that groundwater is an article of commerce, the Court held invalid under the dormant commerce clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

Background Principles, Takings, And Libertarian Property: A Response To Professor Huffman, Michael C. Blumm, J.B. Ruhl

Michael Blumm

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

Consolidation Of Powers Doctrine: A Look Into The Current Viability Of The Modern Delegation Doctrine, Caleb A. Harlin

Caleb A Harlin

This Article attempts to clarify the constitutional validity of the legislative non-delegation doctrine. First is a brief exposition of the philosophical underpinnings of both non-delegation and separation of powers concepts. Then follows a systematic debunking of three major arguments against the historical understanding of non-delegation. The “textual” argument is shown to be textually incongruous with the Constitution both negatively, by the lack of an express grant of this power, and positively, by a solitary instance of constitutional congressional delegation. The “denial” argument ignores the fundamental principles that give governmental legislation any force in a civilized society. The “pragmatic” argument fails …

An Unintended Casualty Of The War On Terror, Aya Gruber

Aya Gruber

As the dust of the Bush administration’s war on terror settles, casualties are starting to appear on the legal battlefield. The United States’ human rights reputation and the Supreme Court’s international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …

Whence Comes Section One? The Abolitionist Origins Of The Fourteenth Amendment, Randy E. Barnett

Randy E Barnett

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Then, after a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, in the 1970s and 1980s two influential works by Robert Cover and William Nelson once again marginalized these thinkers.

This study provides important evidence …

False And Misleading Campaign Speech And The Need For Reform, Kirsten L. Wilcox

Kirsten L Wilcox

This article examines the prevalence of false and misleading speech in political campaigns and the role of the media in proliferating this false speech. Four examples of false speech from the 2008 presidential campaign are considered, as well as the effects of that speech. The media contributes to the problem of false speech when it fails to correct false statements and repeats misleading claims. Several solutions are proposed for decreasing the amount of false or misleading speech in campaigns, including better fact checking, public service announcements, coverage restrictions and a ratings system.

The Influence Of Abraham Lincoln On The Supreme Court’S Interpretation Of The Constitutional Principles Of Liberty And Equality, Wilson Huhn

Wilson R. Huhn

The purpose of this article is to demonstrate that the Supreme Court has embraced Abraham Lincoln’s transcendent understanding of the principles of liberty and equality – transcendent in the sense that these principles are considered to be timeless, universal, and morally binding. The article briefly summarizes the Transcendental Movement, sets forth Lincoln’s understanding of liberty and equality, and describes how, in the modern era, the Supreme Court has “constantly approximated” the principles that Lincoln believed that this country is dedicated to.

The Intrinsic Character Of Defamatory Content As Grounds For A Uniform Regime Of Proving Libel, Nat S. Stern

Nat S Stern

On two occasions the Supreme Court has intimated that plaintiffs in defamation suits do not bear the burden of proving falsity if the defendant is not a member of the media or if the speech addresses a matter of private concern. This Article argues that these potential limitations assign insufficient weight to factual falsity as an intrinsic property of actionable libel. Waiver of plaintiffs’ burden of proof where disputed speech does not involve a public concern, in particular, confuses threshold actionability with considerations relevant to defendants’ intent. Lower court decisions since Milkovich v. Lorain Journal Co., in which the Court …

The Emergence Of East Asia Constitutionalism: Features In Comparison, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Vibrant constitutional democracies have taken hold in East Asian soil. Japan, South Korea and Taiwan came to mind as successful examples. Scant attention, however, has been placed upon ways that constitutionalism has been brought into being and developed into distinctive forms in East Asia. This paper seeks to analyze in a descriptively way constitutional developments in Japan, South Korea and Taiwan. By reading the three cases together, this paper discerns a number of common features shared by the three constitutional developments, which include instrumental constitutional state building, textual and institutional continuity, reactive judicial review and a wide range of rights …

Our Unsettled Ninth Amendment: An Essay On Unenumerated Rights And The Impossibility Of Textualism, Louis Michael Seidman

Louis Michael Seidman

The Ninth Amendment – our resident anarchic and sarcastic “constitutional jester” – mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven’t tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist,

This essay has two parts. In Part I, I present a new and, …

Elevating Civic Discourse, Alan E. Garfield

Alan E Garfield

No abstract provided.

A Post-Racial Voting Rights Act, Jason Rathod (R-Z)

Jason Rathod (R-Z)

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, …

Sugarcoating The Eighth Amendment: Gross Disproportionality Review Is Simply The Fourteenth Amendment Rational-Basis Test, Christopher J. Declue

Christopher J DeClue

It is extremely difficult for a defendant to successfully challenge the length of a sentence under the Eighth Amendment’s prohibition of cruel and unusual punishment. To succeed in such a challenge, a defendant must establish that his sentence is grossly disproportionate to the offense. However, the Court has never offered consistent, workable guidelines to determine whether a sentence is grossly disproportionate.

This Article demonstrates that gross disproportionality review is simply a rational-basis test, one which is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a …

Corporate Social Responsibility After Citizens United, David G. Yosifon

David G. Yosifon

The Supreme Court recently held Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did very little to inform the Court’s thinking in Citizens United, this article argues that the holding in Citizens United requires us to rethink corporate theory. Specifically, this article demonstrates that the shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy, mainstream corporate theorists have long argued, because we can rely …

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …