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Constitutional Law

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The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Sep 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Tara L. Grove

No abstract provided.


Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl Sep 2019

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl Sep 2019

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Jun 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.


Liberty And Separation Of Powers In Judicial Review Of Privatized Governance Regimes, Jeffrey Kleeger Sep 2018

Liberty And Separation Of Powers In Judicial Review Of Privatized Governance Regimes, Jeffrey Kleeger

Journal of the National Association of Administrative Law Judiciary

This article examines the power difference between homeowner association (HOA) owners, members, and their governing boards. Administrative adjudication can remedy the imbalance to better secure member rights. What is necessary is a heightened standard of judicial review and a requirement to produce a comprehensive record for review. Boards enjoy an advantage in disputes with members—courts uphold board actions unless they are arbitrary and capricious. Boards also possess largely unrestricted state-delegated authority to make and enforce rules, as well as decide penalties for infractions. These clearly governmental functions are not restrained by the state action doctrine. Tools of administrative adjudication ...


Hearing The States, Anthony Johnstone May 2018

Hearing The States, Anthony Johnstone

Pepperdine Law Review

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology ...


Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall May 2018

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall

Pepperdine Law Review

Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant ...


Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto May 2018

Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto

Pepperdine Law Review

The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court’s decision-making process might act to reverse this loop and work to depoliticize the ...


How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon May 2018

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases ...


Clarence Thomas: The First Ten Years Looking For Consistency , Mark C. Niles Jun 2017

Clarence Thomas: The First Ten Years Looking For Consistency , Mark C. Niles

Mark Niles

No abstract provided.


The African-American Interest In Higher Law In The Supreme Court: Justices Marshall And Thomas, D. A. Jeremy Telman Dec 2016

The African-American Interest In Higher Law In The Supreme Court: Justices Marshall And Thomas, D. A. Jeremy Telman

D. A. Jeremy Telman

This paper was written for a Festschrift in honor of Henry J. Richardson III. It reviews the constitutional jurisprudence of Justices Thurgood Marshall and Clarence Thomas from the perspective of Professor Richardson’s presentation of an African-American interest in higher law. Both African-American Supreme Court Justices’ constitutional jurisprudence is informed by higher law norms as well as by positive law. The paper contrasts Justice Marshall’s approach, which evaluates legal norms in particular socio-legal contexts, with Justice Thomas’s principled adherence to procedural rules. The paper contends that Professor Richardson’s approach to legal history better accords with Justice Marshall ...


What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin Mar 2016

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.


Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello Aug 2015

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based ...


Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman Aug 2015

Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman

Thomas S Glassman

Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law ...


The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan Jul 2015

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.


Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra Jul 2015

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.


A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee Jul 2015

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.


A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee Jul 2015

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.


A Fourth Amendment Framework For The Fee Exercise Clause, Adam Lamparello May 2015

A Fourth Amendment Framework For The Fee Exercise Clause, Adam Lamparello

Adam Lamparello

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have probable cause ...


The Roberts Court And Penumbral Federalism, Edward Cantu Apr 2015

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and ...


Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello Mar 2015

Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello

Adam Lamparello

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities ...


Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello Mar 2015

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a ...


Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence Mar 2015

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 ...


The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele Feb 2015

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the ...


The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele Feb 2015

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the ...


Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys Jan 2015

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point ...


Three Arguments About War, Robert Tsai Dec 2014

Three Arguments About War, Robert Tsai

Robert L Tsai

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual ...


City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello Dec 2014

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in ...


The Legacy Of Anthony M. Kennedy, Adam Lamparello Dec 2014

The Legacy Of Anthony M. Kennedy, Adam Lamparello

Adam Lamparello

The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.

Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for ...


The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff Oct 2014

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s ...