Law Commons^™

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Faculty Scholarship

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

No abstract provided.

The Impact Of The Thirteenth Amendment On The Common Law, David S. Bogen

Schmooze 'tickets'

No abstract provided.

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Schmooze 'tickets'

No abstract provided.

The Thirteenth Amendment, Interest Convergence, And The Badges And Incidents Of Slavery, William M. Carter Jr.

Schmooze 'tickets'

This article explores the gap between the Thirteenth Amendment's promise and its implementation.

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States , Linda C. Mcclain

Schmooze 'tickets'

No abstract provided.

Why Originalism Is Of So Little Use In Interpreting The Thirteenth Amendment, Henry L. Chambers

Schmooze 'tickets'

The 13th Amendment affords two very different visions. One vision limits the 13th Amendment’s scope to ending slavery and involuntary servitude without more. The second expands the 13th Amendment’s scope to include an anti-subordination principle. Proponents of both visions rely on originalism to support their visions. Unfortunately, originalism does not help us reach a clearly correct conclusion regarding the scope of the 13th Amendment.

That is fine, because the core question regarding the interpretation of the 13th Amendment ought to be whether the amendment is constitutionally transformative. That is, does the 13th Amendment announce a constitutional principle that requires that …

Getting Right Without Lincoln, Daniel W. Hamilton

Schmooze 'tickets'

This short piece is taken from a review of the three important books considered below. This review is part of my current exploration of the historiography of slavery and the Constitution in Civil War legal history.

Brian McGinty, Lincoln and the Court; Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War; Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s Frontier

The Slavery And Involuntary Servitude Of Immigrant Workers: Two Sides Of The Same Coin, Maria L. Ontiveros

Schmooze 'tickets'

No abstract provided.

[Features Of Conventional Scholarly Wisdom About The Thirteenth Amendment], Pamela Brandwein

Schmooze 'tickets'

No abstract provided.

Liberalism, The Thirteenth Amendment, And The Seeds Of Destruction Of Reconstruction, Leslie F. Goldstein

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No abstract provided.

Congressional Authority To Interpret The Thirteenth Amendment, Alexander Tsesis

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No abstract provided.

The Thirteenth Amendment And Constitutional Theory, Earl Maltz

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No abstract provided.

The Thirteenth Amendment And The Meaning Of Familial Bonds, Julie Novkov

Schmooze 'tickets'

No abstract provided.

States Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Schmooze 'tickets'

No abstract provided.

Contract, Race, And Freedom Of Labor In The Constitutional Law Of "Involuntary Servitude", James G. Pope

Schmooze 'tickets'

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the involuntary servitude clause. This article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and …

The Enduring Legacy Of The Thirteenth Amendment, Robert J. Kaczorowski

Schmooze 'tickets'

No abstract provided.

James Ashley And The Thirteenth Amendment, Rebecca E. Zietlow

Schmooze 'tickets'

No abstract provided.

A Grievance Based Interpretation Of The Thirteenth Amendment, Lea Vandervelde

Schmooze 'tickets'

No abstract provided.

The Reconstruction Power, Jack M. Balkin

Schmooze 'tickets'

No abstract provided.

Slavery And The Phenomenology Of Torture, Sanford Levinson

Schmooze 'tickets'

No abstract provided.

Constitutional Politics, Constitutional Law, And The Thirteenth Amendment, Michael Les Benedict

Schmooze 'tickets'

No abstract provided.

Money Talks But It Isn't Speech, Deborah Hellman

Faculty Scholarship

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these …

Money And Rights, Deborah Hellman

Faculty Scholarship

This chapter looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.

Who's In Charge? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival

Faculty Scholarship

No abstract provided.

From Racial Discrimination To Separate But Equal: The Common Law Impact Of The Thirteenth Amendment, David S. Bogen

Faculty Scholarship

Many forces produced the shift in the United States from the acceptance of slavery and racial inequality to the doctrine of separate but equal. The 13th Amendment abolished slavery and authorized legislation to enforce that abolition, but these well-known direct effects are only part of the story. This paper examines the Amendment’s indirect impact on racial discrimination – furthering a standard of equality in public relationships without threatening the existing racial separation. The Amendment is evidence of a change in values that justified overturning prior decisions, and abolition created a new context for legislation and common law decisions. It reinforced …

Original Habeas Redux, Lee B. Kovarsky

Faculty Scholarship

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …

Prosecution Without Representation, Douglas L. Colbert

Faculty Scholarship

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. …

Money And Rights, Deborah Hellman

Faculty Scholarship

This article looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.

Constitutional Democracy, Human Dignity, And Entrenched Evil, Mark A. Graber

Faculty Scholarship

The following essay pays tribute to Sandy Levinson's thoughts on constitutional compromises by paying tribute to the thoughts on constitutional compromises by our common mentor, Walter Murphy. Rather than directly engage in a dialogue with Compromise and Constitutionalism, the analysis below joins the preexisting dalogue between Professors Levinson and Murphy on how to construct a decent polity among people who have deep disputes over what constitutes political decency. Walter Murphy is unfortunately largely known to legal audiences only through the work of such outstanding mentees as Sandy Levinson, Jim Fleming, Christopher Eisgruber, Andrew Koppelman, Jennifer Nedelsky, and Robert George. Walter …