Law Commons^™

Countering Gerrymandered Courts, Jed Handelsman Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter's outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers afriendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping those …

Semi-Presidential Executive Branch Institutionalization And Personalization Under Cuba's 1940 Constitution, Daniel Pedreira

FIU Electronic Theses and Dissertations

The ratification of Cuba’s Constitution of 1940 ushered hopes for democratic stability, most notably through the implementation of a semi-presidential system. Innovative for its time, semi-presidentialism sought to reduce the “perils of presidentialism” that plagued the early decades of the Cuban Republic. Yet, over the next two decades, the Cuban Republic declined and fell as it devolved into authoritarianism and totalitarianism.

This study analyzes the extent to which Cuba’s executive branch was institutionalized or personalized under the 1940 Constitution. Taking a close look at the presidential administrations of Fulgencio Batista Zaldívar (1940-1944, 1952-1954, and 1954-1959), Ramón Grau San Martín (1944-1948), …

F.B.I. V. Fazaga: The Secret Of The State-Secrets Privilege, Rebecca Reeves

Duke Journal of Constitutional Law & Public Policy Sidebar

When the government successfully invokes the state-secrets privilege, it allows for evidence to be excluded from trial if making that evidence public would threaten national security. It is unclear, however, under what circumstances this privilege can be invoked, what happens when it is successfully invoked, and what occurs after the evidence is excluded. In Federal Bureau of Investigation v. Fazaga, the Supreme Court will have the opportunity to clarify the state-secrets privilege. Additionally, the Court will be asked to determine whether the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces this privilege when the government invokes it regarding evidence …

What Does The Jan. 6 Committee Hope To Learn From Sen. Doug Mastriano?, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

Articles

No abstract provided.

The Broken Fourth Amendment Oath, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones …

The Public Accommodations Dilemma - Whose Right Prevails, Meg Penrose

Faculty Scholarship

This essay gives a brief history of religious liberty-based objections to public accommodations law promoting societal integration and provides a potential solution. It argues there are parallels between LGBTQ discrimination and race discrimination, including the continued resistance to full integration and equality. The essay suggests a potential solution to the public accommodations dilemma between anti-discrimination and religious liberty in redefining the scope of religious liberty. Courts should protect religious services and activities—not secular services and activities. The status (religious or secular) of the person providing services should be irrelevant. The focus of public accommodations laws, and legal challenges to these …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson

Articles & Chapters

This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

The Living Rules Of Evidence, G. Alexander Nunn

Faculty Scholarship

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.

The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal …

Proper Cause For Concern: New York State Rifle & Pistol Association V. Bruen, Ali Rosenblatt

Duke Journal of Constitutional Law & Public Policy Sidebar

Gun rights and gun control advocates alike are watching the Supreme Court, to see what happens in New York State Rifle & Pistol Association, Inc. v. Bruen. In this pivotal Second Amendment case, the Court finds its first opportunity to substantially extend its 2008 decision in District of Columbia v. Heller, and to define the scope of the Second Amendment right to bear arms outside the home. The Court can decide this case narrowly by limiting its decision to the statutes at issue, New York’s “proper cause” regime (the “New York law”). Alternatively, the Court can rule broadly and use …

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Attacks On Affirmative Action: Holistic Review Of College Applicants Under Fire, Jennifer Gomez

GGU Law Review Blog

The Supreme Court has upheld affirmative action in higher education recognizing that the consideration of race in a holistic review of a college applicant is narrowly tailored to obtain the compelling state interest of educational benefits associated with a diverse student body. However, recent cases are challenging this precedent and threaten to end the holistic review of college applicants. The Supreme Court has agreed to hear Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. These two cases will determine the future of race conscious admissions …

Addressing Interstate Ground Water Ownership: Mississippi V. Tennessee, Alec Sweet

Duke Journal of Constitutional Law & Public Policy Sidebar

Contemporaneous with significant climate change and heightened environmental concerns, the Supreme Court has seen an increasing number of water-related lawsuits between states. These lawsuits include disputes over water storage and water compacts as well as disputes over water usage affecting aquaculture. Scientists predict that in the future, the United States could face rising temperatures, droughts, and natural disasters. If states cannot cooperate to conserve the water they share, these catastrophes could cause immense suffering and numerous conflicts between states. The Supreme Court needs a consistent doctrine to apply in water disputes.

In prior disputes over surface water, the Court has …

Why Do Pa. Courts Have A Say On Mail-In Voting? They Probably Shouldn't, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

How The U.S. Supreme Court Is Inviting The Senate To Scrap The Filibuster, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Privilege In Peril: U.S. V. Zubaydah And The State Secrets Privilege, Alana Mattei

Duke Journal of Constitutional Law & Public Policy Sidebar

U.S. v. Zubaydah presents an opportunity for the Court to settle the scope of the state secrets privilege and the role of the judiciary when the government invokes a claim of privilege. The state secrets privilege, invoked by the executive, gives courts the power to prevent the disclosure of information that could pose a threat to national security by excluding the particular evidence or dismissing the case. The Court will decide whether the Ninth Circuit erred by rejecting the Government’s assertion of the state secrets privilege over the depositions of former CIA contractors requested by Abu Zubaydah. The Ninth Circuit …

The Emergency Next Time, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Protecting Procedural Safeguards In Federal Capital Trials: United States V. Tsarnaev, Ashley Dabiere

Duke Journal of Constitutional Law & Public Policy Sidebar

The Commentary considers the constitutionality of (1) the trial court’s exclusion of relevant mitigating evidence during the trial’s penalty phase and (2) the imposition of a death sentence by the Supreme Court during a moratorium on federal executions. In the United States District Court for the District of Massachusetts, the jury ultimately convicted Dzhokhar of thirty counts and recommended death sentences for six of the capital offenses. On appeal, the First Circuit vacated these death sentences and remanded the case for a new sentencing hearing with a different jury. First, the Court of Appeals held that the voir dire used …

Nobody's Business: A Novel Theory Of The Anonymous First Amendment, Jordan Wallace-Wolf

Faculty Scholarship

Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one's ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one's conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where …

Procedural Injustice: Indigenous Claims, Limitation Periods, And Laches, Kent Mcneil, Thomas Enns

All Papers

When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied …

Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel

Articles

This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: …

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …

Commentary: Divisive Concepts And Regulation By Threat Of Baseless Lawsuit, John M. Greabe

Law Faculty Scholarship

[Excerpt] "At the State House, attention has returned to New Hampshire's so-called 'divisive concepts' law. The law, enacted in 2021, bars public K-12 teachers from engaging in certain forms of instruction on issues of race, gender, and other forms of discrimination. The Legislature is presently considering bills both to repeal the law and to extend it to the higher education context.

Those who support repeal tend to emphasize the vital need for classroom conversations on topics near the periphery of the restraints on speech imposed by law. And rightly so. The law's purpose and effect are to deter teachers and …

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

All Faculty Scholarship

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

The Big Lie Is Undermining Our Democracy. Both Parties Need To Defeat It, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Sure, Things Seem Bad. But There Are Some Reasons To Be Cheerful In 2022, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

All Faculty Scholarship

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

Tinhatting The Constitution: Originalism As A Fandom, Stacey M. Lantagne

Faculty Scholarship

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves …