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Recent Articles in Constitutional Law
Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller 
Duke Law
Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller
Faculty Scholarship
In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.
This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them ...
Human Rights: A Critique Of The Raz/Rawls Approach, Jeremy Waldron 
NELLCO
Human Rights: A Critique Of The Raz/Rawls Approach, Jeremy Waldron
New York University Public Law and Legal Theory Working Papers
This paper examines and criticizes the suggestion that we should interpret the “human” in “human rights” as (i) referring to the appropriate sort of action when certain rights are violated rather than (ii) the (human) universality of certain rights. It considers first a crude version of (i) — the view that human rights are rights in response to whose violation we are prepared to countenance humanitarian intervention; then it considers more cautious and sophisticated versions of (i). It is argued that all versions of (i) distract us with side issues in our thinking about human rights, and sell short both the ...
If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger 
Maurer School of Law: Indiana University
If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger
Indiana Journal of Law and Social Equality
No abstract provided.
Rights Of Belonging For Women, Rebecca E. Zietlow Maurer School of Law: Indiana University
Rights Of Belonging For Women, Rebecca E. Zietlow
Indiana Journal of Law and Social Equality
No abstract provided.
Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance 
University of Florida Levin College of Law
Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance
Faculty Publications
This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a weapons or substance problem in their schools. Second, it provides normative considerations against implementing strict security measures in schools, especially when they are applied disproportionately on minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, it provides empirical findings ...
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas 
University of Pennsylvania Law School
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
Faculty Scholarship
Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed that ...
Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas University of Pennsylvania Law School
Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas
Faculty Scholarship
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone ...
Algorithms And Speech, Stuart M. Benjamin Duke Law
Algorithms And Speech, Stuart M. Benjamin
Faculty Scholarship
One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt ...
Lower Court Compliance With Supreme Court Remands, Elise Borochoff 
Touro College Jacob D. Fuchsberg Law Center
Lower Court Compliance With Supreme Court Remands, Elise Borochoff
Touro Law Review
No abstract provided.
When Congress Practices Medicine: How Congressional Legislation Of Medical Judgment May Infringe A Fundamental Right, Shannon L. Pedersen Touro College Jacob D. Fuchsberg Law Center
When Congress Practices Medicine: How Congressional Legislation Of Medical Judgment May Infringe A Fundamental Right, Shannon L. Pedersen
Touro Law Review
No abstract provided.
Striking A Balance: The Speech Or Debate Clause’S Testimonial Privilege And Policing Government Corruption, Jay Rothrock Touro College Jacob D. Fuchsberg Law Center
Striking A Balance: The Speech Or Debate Clause’S Testimonial Privilege And Policing Government Corruption, Jay Rothrock
Touro Law Review
No abstract provided.
Fifth Amendment Protection For Public Employees: Garrity And Limited Constitutional Protections From Use Of Employer Coerced Statements In Internal Investigations And Practical Considerations, J. Michael McGuinness Touro College Jacob D. Fuchsberg Law Center
Fifth Amendment Protection For Public Employees: Garrity And Limited Constitutional Protections From Use Of Employer Coerced Statements In Internal Investigations And Practical Considerations, J. Michael Mcguinness
Touro Law Review
No abstract provided.
Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders Maurer School of Law: Indiana University
Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders
Indiana Journal of Law and Social Equality
No abstract provided.
Beyond Batson'S Scrutiny: A Preliminary Look At Racial Disparities In Prosecutorial Preemptory Strikes Following The Passage Of The North Carolina Racial Justice Act, Barbara O'Brien, Catherine M. Grosso 
Michigan State University College of Law
Beyond Batson'S Scrutiny: A Preliminary Look At Racial Disparities In Prosecutorial Preemptory Strikes Following The Passage Of The North Carolina Racial Justice Act, Barbara O'Brien, Catherine M. Grosso
Faculty Publications
The exercise of peremptory challenges remains the least regulated area of jury selection, largely left to the wisdom or whimsy of each litigator. One need not look back far to find a time when litigators brazenly used peremptory strikes to prevent black citizens from serving on juries. In fact, all-white juries remain common in 2012, even in jurisdictions with a substantial African-American population. Our paper explores whether the North Carolina Racial Justice Act might provide a better tool to mitigate the tenacious influence of race in the selection of juries.
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer Duke Law
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 VRA after Shelby County v. Holder. We argue that voting rights activists ought to be prepared — because of developments in constitutional law, or politics, or political practice — for a future in which section 5 is not part of the voting rights landscape. If the Court strikes down section 5, an emerging and fragile ecosystem of private entities, non-judicial institutions, and organized interest groups of various stripes, may be willing and able to mimic the elements that made section 5 an effective ...
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer Maurer School of Law: Indiana University
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Indiana Journal of Law and Social Equality
No abstract provided.
Institutional Choice In An Economic Crisis, David A. Skeel Jr. University of Pennsylvania Law School
Institutional Choice In An Economic Crisis, David A. Skeel Jr.
Faculty Scholarship
Neil Komesar’s work has transformed our understanding of how institutional analysis should be done. There is one very surprising omission from the breathtaking range of Komesar’s oeuvre, however: he has never directly applied his framework to crises. My aim in this Article is to advance, at least in a small way, our understanding of institutional choice during and after an economic crisis. Part I very briefly revisits the recent crisis, emphasizing its institutional dimensions. Part II identifies three puzzles posed by a crisis for standard Komesarian analysis. Part III then shows how Eric Posner and Adrian Vermeule’s ...
Reconstruction And Resistance, Kermit Roosevelt III University of Pennsylvania Law School
Reconstruction And Resistance, Kermit Roosevelt Iii
Faculty Scholarship
This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and ...
Originalism And The Other Desegregation Decision, Ryan C. Williams University of Pennsylvania Law School
Originalism And The Other Desegregation Decision, Ryan C. Williams
Faculty Scholarship
Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates ...
Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky University of Pennsylvania Law School
Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky
Faculty Scholarship
This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of ...
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