Law Commons^™

Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove

Tara L. Grove

A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This Article …

Article Iii In The Political Branches, Tara Leigh Grove

Tara L. Grove

In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Tara L. Grove

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

Constitutional Dilemmas: Defense Of Marriage Act (Doma), Neal Devins, Tara Leigh Grove

Tara L. Grove

No abstract provided.

“Facebook In The Flesh”, Timothy Zick

Timothy Zick

No abstract provided.

The First Amendment And The World, Timothy Zick

Timothy Zick

No abstract provided.

The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, Timothy Zick

Timothy Zick

This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment—the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly—i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does …

Supreme Court Preview 2014-2015: First Amendment, Timothy Zick, Walter E. Dellinger Iii, Paul Smith, Dahlia Lithwick

Timothy Zick

No abstract provided.

Space, Place, And Speech: The Expressive Topography, Timothy Zick

Timothy Zick

No abstract provided.

Rights Dynamism, Timothy Zick

Timothy Zick

No abstract provided.

Right Of The Occupiers, Jimmy Barrett, Timothy Zick

Timothy Zick

No abstract provided.

Recovering The Assembly Clause, Timothy Zick

Timothy Zick

No abstract provided.

Property, Place, And Public Discourse, Timothy Zick

Timothy Zick

No abstract provided.

Professional Rights Speech, Timothy Zick

Timothy Zick

Some regulations of professional-client communications raise important, but sofar largely overlooked, constitutional concerns. Three recent examples of professional speech regulation-restrictions on physician inquiries regarding firearms, "reparative" therapy bans, and compelled abortion disclosures-highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right--the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First …

Practical Equality: Discussion With Author Robert L. Tsai, Timothy Zick, Robert L. Tsai

Timothy Zick

Professor Timothy Zick discusses a new book titled "Practical Equality: Forging Justice in a Divided Nation," with its author, Professor Robert L. Tsai of American University Washington College of Law. Timothy Zick is the John Marshall Professor of Government and Citizenship at William & Mary Law School. His scholarship has explored a wide variety of constitutional issues, with a special focus on the First Amendment. Robert L. Tsai is Professor of Law at American University and a prize-winning essayist in constitutional law and history. Recorded before a live audience at William & Mary Law School on March 14, 2019. The …

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Timothy Zick

No abstract provided.

Cross Burning, Cockfighting, And Symbolic Meaning: Toward A First Amendment Ethnography, Timothy Zick

Timothy Zick

No abstract provided.

Congress, The Internet, And The Intractable Pornography Problem: The Child Online Protection Act Of 1998, Timothy Zick

Timothy Zick

No abstract provided.

Be It Resolved . . ., Timothy Zick

Timothy Zick

No abstract provided.

An Anthem For Ows?, Timothy Zick

Timothy Zick

No abstract provided.

Coercion And Choice Under The Establishment Clause, Cynthia V. Ward

Cynthia V. Ward

In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …

Sentencing Roulette: How Virginia’S Criminal Sentencing System Is Imposing An Unconstitutional Trial Penalty That Suppresses The Rights Of Criminal Defendants To A Jury Trial, Caleb R. Stone

Caleb R. Stone

No abstract provided.

Property's Constitution, James Y. Stern

James Y. Stern

Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do …

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

James Y. Stern

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

Choice Of Law, The Constitution And Lochner, James Y. Stern

James Y. Stern

No abstract provided.

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Ronald H. Rosenberg

No abstract provided.

Constitutional Law - The Eighth Amendment And Prison Reform, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

Specific Performance And The Thirteenth Amendment, Nathan B. Oman

Nathan B. Oman

No abstract provided.