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Nfib V. Sebelius At 5, Nicole Huberfeld Jun 2018

Nfib V. Sebelius At 5, Nicole Huberfeld

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Equal Protection Under The Carceral State, Aya Gruber Jun 2018

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety ...


Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut Jun 2018

Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?, Kyneshawau Hurd, Victoria C. Plaut

Northwestern University Law Review

Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted truths—because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several “common-sense” rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale—essential, even, for a ...


Judicial Engagement, New Originalism, And The Fortieth Anniversary Of Government By Judiciary, Eric J. Segall May 2018

Judicial Engagement, New Originalism, And The Fortieth Anniversary Of Government By Judiciary, Eric J. Segall

Fordham Law Review Online

Part I briefly summarizes Berger’s originalist approach. Part II describes how the new Judicial Engagement originalists suggest judges should resolve constitutional cases. Part III explains why text and history do not support their judicially enforceable, libertarian political agendas. Part III does not suggest that this agenda leads to bad results, is harmful, or should not be adopted by today’s judges. But for the sake of governmental and academic transparency, judges, legal scholars, and politicians who embrace Judicial Engagement, should also accept that their theory of judicial review is not supported by either the Constitution’s text or history ...


Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall May 2018

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often ...


Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet Apr 2018

Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman Apr 2018

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.


Vice Presidential Immunity In The Age Of Impeachment: A Fresh Look At The Agnew Precedent, Mark E. Coon Apr 2018

Vice Presidential Immunity In The Age Of Impeachment: A Fresh Look At The Agnew Precedent, Mark E. Coon

ConLawNOW

Since the 1973 prosecution of incumbent Vice President Spiro T. Agnew, the U.S. Department of Justice has taken the position that sitting Vice Presidents are not constitutionally immune from criminal prosecution in the same way that sitting Presidents are. With the modern rise of prosecution and impeachment as weapons in the political arsenal, the Agnew precedent threatens to upset the constitutional balance of power because it makes Vice Presidents easily removable. This essay argues that the Agnew precedent is incorrect and that Vice Presidents are absolutely immune from prosecution while in office because of the Vice Presidency’s role ...


Rfra As Legislative Entrenchment, Branden Lewiston Mar 2018

Rfra As Legislative Entrenchment, Branden Lewiston

Pepperdine Law Review

When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws ...


Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett Feb 2018

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to ...


Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein Feb 2018

Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein

Maine Law Review

The editors of the Maine Law Review have been kind enough to offer me the opportunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, “When Should Rights ‘Trump’? An Examination of Speech and Property,” which appears in the preceding issue. In my earlier writings on constitutional law, more specifically, in my paper, Property, Speech and the Politics of Distrust, I took the position that modern Supreme Court jurisprudence had taken a turn for the worse insofar as it used different standards of review in passing on the constitutionality of legislation. The current position ...


The Affordable Care Act And The Chronic Challenge Of Cost Control, Isaac D. Buck Feb 2018

The Affordable Care Act And The Chronic Challenge Of Cost Control, Isaac D. Buck

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Tax Constitutional Questions In Obamacare Continued: Nfib V. Sebelius In Light Of Citizens United V. Fec, Speiser V. Randall, Windsor V. United States, Lawrence V. Texas, Et Al., John R. Dorocak Feb 2018

Tax Constitutional Questions In Obamacare Continued: Nfib V. Sebelius In Light Of Citizens United V. Fec, Speiser V. Randall, Windsor V. United States, Lawrence V. Texas, Et Al., John R. Dorocak

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Precedent And Constitutional Structure, Randy J. Kozel Feb 2018

Precedent And Constitutional Structure, Randy J. Kozel

Northwestern University Law Review

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason Jan 2018

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

Faculty Scholarship

In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.


Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa Jan 2018

Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa

Northwestern Journal of Law & Social Policy

No abstract provided.


Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen Jan 2018

Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen

Scholarly Works

A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally ...


Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress.

The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel ...


Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel Jan 2018

Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S ...


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


The Challenge Of The New Preemption, Richard Briffault Jan 2018

The Challenge Of The New Preemption, Richard Briffault

Faculty Scholarship

The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including inter alia firearms, workplace conditions, sanctuary cities, anti-discrimination laws, plastic bag bans, and menu labeling. Particularly striking are punitive measures that do not just preempt local ordinances but hit local officials or governments with criminal or civil fines, state aid cut-offs, or liability for damages, and broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption is closely linked ...


Formal And Informal Constitutional Amendment Of The United States Constitution, Richard S. Kay Dec 2017

Formal And Informal Constitutional Amendment Of The United States Constitution, Richard S. Kay

Richard Kay

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest ...


Due Process Abroad, Nathan Chapman Dec 2017

Due Process Abroad, Nathan Chapman

Scholarly Works

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up ...


Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam Nov 2017

Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam

Maine Law Review

Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville ...


Digital Locks, Physical Objects And Immaterial Works, Pascale Chapdelaine Nov 2017

Digital Locks, Physical Objects And Immaterial Works, Pascale Chapdelaine

Law Publications

One of the greatest controversies in contemporary copyright law is the introduction of technological protection measures (TPMs) at the international and national level. By creating a separate parallel regime for digital copyright works, TPMs shifted the paradigm by redefining the rules of engagement of how users would increasingly access and experience digital copyright works.

In this chapter of my book Copyright User Rights, Contracts, and the Erosion of Property (Oxford University Press, 2017) I look at the implementation of TPMs as a regulatory tool from a multi-jurisdictional perspective. Initially mainly intended to protect copyright holders’ works made accessible online or ...


The Collapse Of The New Deal Conceptual Universe: The Schmooze Project, Mark A. Graber Nov 2017

The Collapse Of The New Deal Conceptual Universe: The Schmooze Project, Mark A. Graber

Maryland Law Review

No abstract provided.


A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff Oct 2017

A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff

Steven Davidoff Solomon

The Jewish view on the death penalty is that it should exist but it should never be used .... [lI]t is Governor Pataki's job to ensure :order. But he must remember that as a leader he must exhibit attributes of both the father and the mother. Governor Pataki is a nice man. But if he acts on the death penalty, he will be the leader of a bloody government


Balancing Security And Liberty In Germany, Russell A. Miller Oct 2017

Balancing Security And Liberty In Germany, Russell A. Miller

Russell A. Miller

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and ...


Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach Oct 2017

Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach

Sujit Choudhry

Given the prominence of the issue of racial, ethnic, and religious profiling in the public debate about terrorism, it is significant that Canada's two legislative responses to September 11 - the Anti-terrorism Act and the proposed Public Safety Act - are silent on the issue, neither explicitly authorizing profiling nor expressly banning it. In this article, we focus on the constitutional remedies available for profiling in the face of these statutory silences, and the implication that the choice of remedies holds for both remedial efficacy and democratic accountability. Contrary to the position held by the majority of the Supreme Court in ...


Hate Speech Debate Has Roots In Us History, Rodney A. Smolla Sep 2017

Hate Speech Debate Has Roots In Us History, Rodney A. Smolla

Rod Smolla

No abstract provided.