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Full-Text Articles in Constitutional Law

Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer Jan 2009

Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. …


Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss Jan 2009

Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss

Articles by Maurer Faculty

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …


Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle Jan 2009

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …


Death To Tyrants: District Of Columbia V. Heller And The Uses Of Guns, David C. Williams Jan 2008

Death To Tyrants: District Of Columbia V. Heller And The Uses Of Guns, David C. Williams

Articles by Maurer Faculty

No abstract provided.


The Supreme Court And Indiana's Voter Id Law, David Williams Jan 2008

The Supreme Court And Indiana's Voter Id Law, David Williams

Articles by Maurer Faculty

No abstract provided.


Challenging The Assumption Of Equality: The Due Process Rights Of Foreign Litigants In U.S. Courts (Panel), Austen L. Parrish, Paul R. Dubinsky Jan 2007

Challenging The Assumption Of Equality: The Due Process Rights Of Foreign Litigants In U.S. Courts (Panel), Austen L. Parrish, Paul R. Dubinsky

Articles by Maurer Faculty

No abstract provided.


Are Senior Judges Unconstitutional?, Ryan W. Scott, David R. Stras Jan 2007

Are Senior Judges Unconstitutional?, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems …


The Aggregate Harmony Metric And A Statistical And Visual Contextualization Of The Rehnquist Court: 50 Years Of Data, Peter A. Hook Jan 2007

The Aggregate Harmony Metric And A Statistical And Visual Contextualization Of The Rehnquist Court: 50 Years Of Data, Peter A. Hook

Articles by Maurer Faculty

This article contains aggregated data from fifty years of the annual matrixes of justice inter-agreement for particular Supreme Court terms published by the Harvard Law Review (1956 to 2005 terms). Aggregating how often any two justices sided together on cases for a particular term relative to the amount of cases the two justices heard together allows one to derive a measure of the particular term that reflects the relative amount of agreement or disagreement for the term. This new metric, called the Aggregate Harmony Metric, allows for comparative benchmarks. For instance, the 2005 term, with an aggregate agreement of 70%, …


Of Platonic Guardians, Trust, And Equality: A Comment On Hasen's Minimalist Approach To The Law Of Elections, Luis Fuentes-Rohwer Jan 2004

Of Platonic Guardians, Trust, And Equality: A Comment On Hasen's Minimalist Approach To The Law Of Elections, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.


An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude Jan 2004

An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude

Articles by Maurer Faculty

This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …


In Defense Of Deference, Luis Fuentes-Rohwer, Guy-Uriel E. Charles Jan 2004

In Defense Of Deference, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.


The Dynamic Judicial Opinion, William D. Popkin Jan 2002

The Dynamic Judicial Opinion, William D. Popkin

Articles by Maurer Faculty

Eskridge's article on Dynamic Statutory Interpretation advances an aggressively pragmatic theory of interpretation but has had more influence among academics than judges because of a failure to attend to the problems of writing a candid, pragmatic and dynamic judicial opinion. This article argues that, although not free from doubt, a candid judicial opinion is preferable, and discusses how to write such an opinion - suggesting that judges rely on the "intent of the statute," not legislative intent; and adopt a personal/exploratory style in presenting their views.


Baker's Promise, Equal Protection, And The Modern Redistricting Revolution: A Plea For Rationality, Luis Fuentes-Rohwer Jan 2002

Baker's Promise, Equal Protection, And The Modern Redistricting Revolution: A Plea For Rationality, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The conventional wisdom contends that Baker v. Carr did not set down a standard for lower courts to follow. This Article responds to this position. It reaches three conclusions. First, it argues the implicit promise of Baker v. Carr pointed toward a loose, flexible rationality standard for deciding redistricting controversies. Under this approach, states were given much room to enact redistricting plans in accordance to their states' particular needs. Second, the lower courts applied precisely this standard in litigation in the wake of Baker, and did so quite capably. This conclusion responds to those who exhort the imposition of a …


Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Luis Fuentes-Rohwer, Guy-Uriel E. Charles Jan 2001

Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.


Book Review. American Constitutionalism: From Theory To Politics, Daniel O. Conkle Jan 1997

Book Review. American Constitutionalism: From Theory To Politics, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


Book Review. The Supreme Court And Constitutional Theory: 1953-1993, Donald H. Gjerdingen Jan 1995

Book Review. The Supreme Court And Constitutional Theory: 1953-1993, Donald H. Gjerdingen

Articles by Maurer Faculty

No abstract provided.


Retroactivity And The Great Writ: How Congress Should Respond To Teague V. Lane, Joseph L. Hoffmann Jan 1990

Retroactivity And The Great Writ: How Congress Should Respond To Teague V. Lane, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.


Book Review. Behind Bakke: Affirmative Action And The Supreme Court By Bernard Schwartz, Daniel O. Conkle Jan 1989

Book Review. Behind Bakke: Affirmative Action And The Supreme Court By Bernard Schwartz, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


Are State Courts Enforcing The Fourth Amendment? A Preliminary Study, Craig M. Bradley Jan 1988

Are State Courts Enforcing The Fourth Amendment? A Preliminary Study, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


Symposium: Bowsher V. Synar: Introduction, Alfred C. Aman Jan 1987

Symposium: Bowsher V. Synar: Introduction, Alfred C. Aman

Articles by Maurer Faculty

The papers in this symposium examine constitutionally significant separation-of-powers themes that were particularly controversial in Franklin Roosevelt's administrations and once again command our attention. The Supreme Court's decision in cases such as Immigration & Naturalization Services v. Chadha I and Bowsher v. Synar2 have helped to resurrect questions that have been ignored, if not resolved, since the 1930s. This symposium focuses on the contemporary debate that these issues have generated, and it provides us with an array of approaches to and perspectives on that debate. As this Introduction emphasizes, that these issues have arisen before is significant, both legally and …


Interest Analysis As Constitutional Law, Gene R. Shreve Jan 1987

Interest Analysis As Constitutional Law, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.


The Uncertainty Principle In The Supreme Court, Craig M. Bradley Jan 1986

The Uncertainty Principle In The Supreme Court, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


Two Models Of The Fourth Amendment, Craig M. Bradley Jan 1985

Two Models Of The Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


The Legitimacy Of Judicial Review In Individual Rights Cases: Michael Perry's Constitutional Theory And Beyond, Daniel O. Conkle Jan 1985

The Legitimacy Of Judicial Review In Individual Rights Cases: Michael Perry's Constitutional Theory And Beyond, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


Nonoriginalist Constitutional Rights And The Problem Of Judicial Finality, Daniel O. Conkle Jan 1985

Nonoriginalist Constitutional Rights And The Problem Of Judicial Finality, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


Griffin V. California: Still Viable After All These Years, Craig M. Bradley Jan 1981

Griffin V. California: Still Viable After All These Years, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


Comparative Negligence Versus The Constitutional Guarantee Of Equal Protection: A Hypothetical Judicial Decision, Daniel O. Conkle, Claude R. Sowle Jan 1979

Comparative Negligence Versus The Constitutional Guarantee Of Equal Protection: A Hypothetical Judicial Decision, Daniel O. Conkle, Claude R. Sowle

Articles by Maurer Faculty

No abstract provided.


Easy Cases, Bad Law, And Burdens Of Proof, Roger B. Dworkin Jan 1972

Easy Cases, Bad Law, And Burdens Of Proof, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.


Advisory Opinions In The Federal Judiciary -- A Comparative Study, Wencelas J. Wagner Jan 1958

Advisory Opinions In The Federal Judiciary -- A Comparative Study, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.


The Original And Exclusive Jurisdiction Of The United States Supreme Court, Wencelas J. Wagner Jan 1952

The Original And Exclusive Jurisdiction Of The United States Supreme Court, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.