Constitutional Law Commons^™

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

Anti-Evasion Doctrines In Constitutional Law, Michael B. Kent Jr., Brannon P. Denning

Scholarly Works

Recent constitutional scholarship has focused on how courts - the Supreme Court in particular - "implement" constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the "constitutional operative proposition," but must then design "decision rules" that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. …

Putting Constitutional Teeth Into Apaper Tiger: How To Fix The War Powersresolution, Brian J. Litwak

American University National Security Law Brief

No abstract provided.

The Health Care Cases And The New Meaning Of Commandeering, Bradley W. Joondeph

Patient Protection and Affordable Care Act Litigation

The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive, the Court has re-conceptualized what constitutes a …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

All Faculty Scholarship

This article considers whether a statute or rule of court allowing the prosecution to appeal a directed verdict of not guilty, or its equivalent, would be constitutional under the Double Jeopardy Clause.

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

Cornell Law Faculty Publications

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder.

Lennie was doomed …

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

A Modest Experiment In Pedagogy: Lessons On Comparative Constitutional Law, Thomas E. Baker

Faculty Publications

This article describes how the author integrated comparative and international law lessons into a first year course on U.S. Constitutional Law. This version of a paper originally submitted to the International Association of Law Schools Conference on Comparative Constitutional Law in 2009, has been enriched by adding citations and references to relevant papers of other conference participants. The article includes a review of the literature on teaching comparative constitutional law, basic pedagogical theory, a bibliography, some practical advice and a set of four lessons on the themes of judicial review, transnational interpretation, affirmative action and reproductive rights, complete with discussion …

Fifty More Constitutions, Mary Whisner

Librarians' Articles

The U.S. Constitution may get all the attention, but as Ms. Whisner points out, state constitutional law is also important to legal researchers. Unfortunately, the sources for researching state constitutions are more limited and difficult to find. She describes a web site created by the Gallagher Law Library at the University of Washington School of Law that makes available sources of Washington State constitutional history.

Freedom Struggles And The Limits Of Constitutional Continuity, Aziz Rana

Cornell Law Faculty Publications

This Essay challenges the view that although the actual and everyday Constitution may be riddled with real injustices, progressives should maintain faith in an idealized document and should see the shared language of constitutionalism as the privileged instrument for redeeming political life. Instead, it argues that faith should reside in an ideal of effective and equal freedom alone. Indeed, such a commitment may at key moments require pursuing constitutional rupture and rejection. The Essay highlights this point by reinterpreting two central decisions from the Civil War and Reconstruction eras: The Prize Cases (1863) and Ex parte Milligan (1866). These cases …

Martin Welker: Ohio's Unsung Hero, Aaron Boothby

The 39th Congress Project

No abstract provided.

Robert Cumming Schenck: Ohio's Bitter, Fearless Fighter, Devin C. Capece

The 39th Congress Project

No abstract provided.

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Akron Law Faculty Publications

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Book Review, Barbara Babcock's Woman Lawyer: The Trials Of Clara Foltz, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.

Forward: "War On Women" In Women And The Law, Tracy Thomas

Con Law Center Articles and Publications

This foreword to Women and the Law highlights the dramatic attacks on women's rights over the past year. It summarizes the articles contained in this annual selection of leading scholarship in the field of women's rights. This "greatest hits" collection pulls together academic research of potential interest to litigators and policymakers on issues of reproductive rights, feminism and the family, violence against women, employment, women's healthcare, and feminist legal theory.

Switching To Prophylactic Injunctions, Tracy Thomas

Con Law Center Articles and Publications

This essay highlights the significance of John Golden’s work on patents to the field of Remedies more generally. In his important new article, Injunctions as More (or Less) Than ‘Off Switches’: Patent-Infringement Injunctions’ Scope (Texas Law Review), Golden proves my thesis: prophylactic injunctions are, and should be, common, normal types of equitable relief. His careful and detailed analysis of the type and frequency of injunctions issued in patent infringement cases exposes the myth that prophylaxis is illegitimate. Steeped in details of patent law, Golden’s work nevertheless contributes significantly to the broader transsubstantive questions of the metes and bounds of equitable …