Law Commons^™

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck

Faculty Publications

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent …

Environmental Indifference, Anthony L. Moffa

Faculty Publications

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon …

Pure Privacy, Jeffrey Bellin

Faculty Publications

n 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Reconstruction Sentencing: Reimagining Drug Sentencing In The Aftermath Of The War On Drugs, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the failed War on Drugs has to be among the top priorities. The forty years of treating drug law offenders as enemies of society have left us with decimated communities and have perpetuated a biased view of …

Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "pre­sumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …

Charles Reich, New Dealer, John Q. Barrett

Faculty Publications

(Excerpt)

My encounters with Charles Reich began long before I had any personal contact with him. I read his 1970 bestseller The Greening of America late in that decade, when I was in high school. From then on, I always owned a copy of that book, until it would disappear in a move or on "loan" to some friend.

Luckily so many copies of Greening are in print that I easily would find it anew in used bookstores. So, I often restocked, reread in the book, and got to feel afresh the lift of Reich's spirit and his words.

Consider, …

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

That Is Enough Punishment: Situating Defunding The Police Within Antiracist Sentencing Reform, Jalila Jefferson-Bullock, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago. One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls …

Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick

Faculty Publications

Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, ""civic republican," "individual," and 'fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article …

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …

After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck

Faculty Publications

Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What …

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the …

How Many Votes Is Too Few?, Rebecca Green

Faculty Publications

No abstract provided.

The Traditions Of American Constitutional Law, Marc O. Degirolami

Faculty Publications

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

Property's Problem With Extremes, Lynda L. Butler

Faculty Publications

Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Liquidating Elector Discretion, Rebecca Green

Faculty Publications

In Chiafalo et al. v. Washington, the US. Supreme Court determined that states may constitutionally remove or punish faithless electors. In support of its holding, the Court cited a 2014 case called National Labor Relations Board v. Noel Canning, which blessed a form of constitutional interpretation that looks to settled practice (or "liquidation," as James Madison called it) to resolve constitutional ambiguity. The Court agreed with petitioners that electors following the majority will of voters in their state is settled practice. This Article engages this assertion, suggesting that the question is more nuanced than the Court allowed. It …

Free Speech Idealism, Timothy Zick

Faculty Publications

No abstract provided.

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making …

A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction, Charles W. (Rocky) Rhodes, Cassandra Burke Robertson

Faculty Publications

In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.

Registration-based consent to jurisdiction has a long …

Educational Gerrymandering: Money, Motives, And Constitutional Rights, Derek Black

Faculty Publications

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts did almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right could be approaching a tipping point. Either it evolves, or risks becoming irrelevant.

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the …

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Counterfeit Campaign Speech, Rebecca Green

Faculty Publications

We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no …

British Impeachments (1376-1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii

Faculty Publications

Impeachment is a British invention, employed by Parliament beginning in 1376 to resist the general tendency of the monarchy to absolutism and to counter particularly obnoxious royal policies by removing the ministers who implemented them. The invention crossed the Atlantic with the British colonists who would one day rebel against their mother country and create an independent United States of America. During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they recoiled from the severe and occasionally fatal punishments imposed by Parliament, and they wrestled over what conduct should be …

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …