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Social and Behavioral Sciences Commons™
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- Constitutional law (14)
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- Shelby County v. Holder (2)
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Articles 1 - 30 of 39
Full-Text Articles in Social and Behavioral Sciences
False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin
False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin
Faculty Scholarship
According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …
The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett
The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett
Faculty Scholarship
The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …
Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel
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. Constitution …
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy
Faculty Scholarship
The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No …
Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel
Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel
Faculty Scholarship
This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …
Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith
Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith
Faculty Scholarship
Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:
(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;
(b) make increasingly consequential political commitments for the United States on practically any topic;
(c) interpret these obligations and commitments; and
(d) terminate or withdraw from these obligations and commitments.
While others have examined pieces of this …
The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger
The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger
Faculty Scholarship
Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests.
The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and …
Fear And Firearms, Darrell A. H. Miller
The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley
The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley
Faculty Scholarship
As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this …
Dna And Distrust, Kerry Abrams, Brandon L. Garrett
Dna And Distrust, Kerry Abrams, Brandon L. Garrett
Faculty Scholarship
Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in …
Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman
Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman
Faculty Scholarship
This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the …
Continuity And The Declaration Of Independence, Darrell A. H. Miller
Continuity And The Declaration Of Independence, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith
Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith
Faculty Scholarship
There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …
The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel
The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel
Faculty Scholarship
Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …
Coming Into The Anthropocene, Jedediah Purdy
Coming Into The Anthropocene, Jedediah Purdy
Faculty Scholarship
This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …
The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer
The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
The Voting Rights Act (“VRA”), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today’s voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never …
The Puzzling Persistence Of Dual Federalism, Ernest A. Young
The Puzzling Persistence Of Dual Federalism, Ernest A. Young
Faculty Scholarship
This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …
Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel
Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel
Faculty Scholarship
This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young
Faculty Scholarship
No abstract provided.
None Of The Laws But One, Neil S. Siegel
None Of The Laws But One, Neil S. Siegel
Faculty Scholarship
This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today's Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the …
Treaty Termination And Historical Gloss, Curtis A. Bradley
Treaty Termination And Historical Gloss, Curtis A. Bradley
Faculty Scholarship
The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …
Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young
Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young
Faculty Scholarship
No abstract provided.
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Faculty Scholarship
Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …
Slavery In The United States: Persons Or Property?, Paul Finkelman
Slavery In The United States: Persons Or Property?, Paul Finkelman
Faculty Scholarship
No abstract provided.
What Are We Doing To The Children?: An Essay On Juvenile (In)Justice, Michael E. Tigar
What Are We Doing To The Children?: An Essay On Juvenile (In)Justice, Michael E. Tigar
Faculty Scholarship
No abstract provided.
White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller
White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller
Faculty Scholarship
In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had …
Mandatory Constitutions, Paul D. Carrington
A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne
A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne
Faculty Scholarship
Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
Faculty Scholarship
Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …