Law Commons^™

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making …

"Sheer Force Of Tweet:" Testing The Limits Of Executive Power On Twitter, Kristina T. Bodnar

Journal of Law, Technology, & the Internet

President Donald Trump’s affinity for Twitter has raised novel issues of constitutional law, tested the norms for presidential etiquette, and opened up a dialogue about whether tweets are considered the actual directives of the President. This note explores four subject areas that the President has tweeted about: judicial legitimacy, executive orders, removal of appointees, and entering into armed conflicts. Then, these topics will be considered in terms of whether presidential speech on social media should be regulated to protect against the risks of posting on the Internet and to ensure the preservation of the principles of democracy embedded in the …

Do Ontario School Boards Have Too Much Statutory Power? A Comparison Of Expropriation And Eminent Domain In Ontario And Michigan, Mario Marrell, Michael Valentin

Canada-United States Law Journal

The authors discuss the comparative law of expropriation, particularly as exercised by school boards in Ontario and Michigan They suggest that the sweeping authority given to governments in Ontario to expropriate land should be reviewed and subjected to a stricter legal standard, possibly through a constitutionalization of a right to private property in Canada, In the United States, the Fifth Amendment protects an individual's right to private property and as such, the government must meet a much stricter standard before it lawfully takes an individual's land. Individuals in the United States who decide to litigate issues of expropriation when their …

Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …

The Right To Appeal, Cassandra Burke Robertson

Faculty Publications

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.

In this …

Medical Decision Making By And On Behalf Of Adolescents: Reconsidering First Principles, B. Jessie Hill

Faculty Publications

The school nurse cannot give your teenage daughter an aspirin for her headache without your permission, but that same daughter can get an abortion without even informing you. Or can she? The obligations on medical personnel providing care to adolescents are famously indeterminate.

Two common-law presumptions have long lurked in the background, but, far from elucidating matters, those presumptions have contributed to the state of confusion. The first presumption is that, absent any special rule, children lack the legal authority to consent to medical treatment on their own. A parallel and corresponding presumption is that parents have a legal entitlement …

A Tax Or Not A Tax: That Is The Question, Erik M. Jensen

Faculty Publications

This piece is part of the author’s probably misguided effort to take seriously the Sixteenth Amendment phrase “taxes on incomes.” The piece (in form a letter to the editor, but complete with footnotes!) responds to a reader who had noted that, because of a cap, the basic Social Security “tax” does not reach higher levels of income. Because the author had earlier argued that a tax “on” incomes should result in higher tax liability for higher-income persons, it might seem that the Social Security levy is unconstitutional (or the author just wrong). This piece makes several points: (1) The Social …

Prepositions In The Constitution, Erik M. Jensen

Faculty Publications

To defend the proposition that prepositions matter, this article examines the "of" in the phrase "duties of tonnage" and the "on" in "taxes on incomes."

Whose Body? Whose Soul? Medical Decision-Making On Behalf Of Children And The Free Exercise Clause Before And After Employment Division V. Smith, B. Jessie Hill

Faculty Publications

Within constitutional law, children’s rights have suffered from severe neglect. The issue of parents’ constitutional rights to deny children medical treatment based on religious belief is one area in desperate need of attention. Although the Supreme Court’s 199 decision in Employment Division v. Smith seemingly set forth a relatively clear rule regarding the availability of exemptions from generally applicable laws - such as those requiring parents to ensure that their children receive appropriate medical care - Smith has changed little in this realm, and if anything, it has only confused matters, highlighting the intractable nature of the issue. While Smith …

Responding To Political Corruption: Some Institutional Considerations, Jonathan L. Entin

Faculty Publications

This article, written for a conference on "The Scandal of Political Corruption and the Law’s Response," examines some institutional mechanisms (such as open-meetings laws and term limits) that are intended to prevent corruption and others (such as independent counsels, special prosecutors, and ethics commissions) that seek to punish corruption after the fact. The article assesses some of the legal and practical constraints of these devices and, relying on the insights of Durkheim and other social scientists, asks whether some minimum level of corruption might serve the function of helping to define and reinforce social norms and values.

Murphy V. Internal Revenue Service, The Meaning Of Income, And Sky-Is-Falling Tax Commentary, Erik M. Jensen

Case Western Reserve Law Review

No abstract provided.

Exploring The Affective Constitution, Kathryn Abrams

Case Western Reserve Law Review

No abstract provided.

The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson

Case Western Reserve Law Review

No abstract provided.

The Inevitability (And Desirability) Of Avoidance: A Response To Dean Kloppenberg, Melvyn R. Durchslag

Case Western Reserve Law Review

No abstract provided.

Does Avoiding Constitutional Questions Promote Judicial Independence, Lisa A. Kloppenberg

Case Western Reserve Law Review

No abstract provided.

Avoiding Avoidance: Why Use Of The Constitutional Avoidance Canon Undermines Judicial Independence - A Response To Lisa Kloppenberg, Michelle R. Slack

Case Western Reserve Law Review

No abstract provided.

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark Tushnet

Case Western Reserve Law Review

No abstract provided.

The Constitution Restoration Act, Judicial Independence, And Popular Constitutionalism, Ronald Kahn

Case Western Reserve Law Review

No abstract provided.

Are Congressional Committees Constitutional ?: Radical Textualism, Separation Of Powers, And The Enactment Process, John C. Roberts

Case Western Reserve Law Review

No abstract provided.

Mapp Goes Abroad, Craig M. Bradley

Case Western Reserve Law Review

No abstract provided.

The Constitution Of Europe, By Joseph H. H. Weiler, Edward A. Mearns Jr.

Case Western Reserve Journal of International Law

available after review at page 163

Legislative Deference In Eighth Amendment Capital Sentencing Challenges: The Constitutional Inadequacy Of The Current Judicial Approach, Matthew E. Albers

Case Western Reserve Law Review

No abstract provided.

Logic And Legitimacy: The Uses Of Constitutional Argument, Brian Winters

Case Western Reserve Law Review

No abstract provided.

Arendt, Tushnet, And Lopez: The Philosophical Challenge Behind Ackerman's Theory Of Constitutional Moments, Candice Hoke

Case Western Reserve Law Review

No abstract provided.

Constitutional Fairness Or Fraud On The Constitution--Compensatory Discrimination In India, E. J. Prior

Case Western Reserve Journal of International Law

No abstract provided.

Indigenization Of Constitutionalism In The Japanese Experience, The, Christopher A. Ford

Case Western Reserve Journal of International Law

No abstract provided.

The Future Of Federalism, Robert F. Nagel

Case Western Reserve Law Review

No abstract provided.

Market Causes Of Constitutional Values, Christopher T. Wonnell

Case Western Reserve Law Review

No abstract provided.

Islamic Constitutionalism And The Concept Of Democracy, Azizah Y. Al-Hibri

Case Western Reserve Journal of International Law

No abstract provided.

Some Queries About Privacy And Constitutional Rights, Michael Grossberg

Case Western Reserve Law Review

No abstract provided.