Law Commons^™

The Constitutional Right To "Conservative" Revolution, David C. Williams

Articles by Maurer Faculty

No abstract provided.

A Twentieth Amendment Parable, John C. Nagle

Journal Articles

The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the …

Suspending The Rule Of Law - Temporary Immunity As Violative Of Montesquieu's Republican Virtue As Embodied In George Washington, Joseph P. Rodgers

Cleveland State Law Review

This Note offers a somewhat unique perspective on the notion of clemency. This inquiry contemplates the merit of temporary immunity from civil suits for acts which eventuated outside the scope of one's official responsibilities and argues that such an unprecedented expansion of civil immunity is antithetical to Montesquieu's conception of public virtue as evinced in The Spirit of Laws. This Note also reflects on the iconic role of Washington at the Constitutional Convention as emblematic of quintessential republican virtue. Part II briefly traces the evolution of absolute, qualified, and temporary immunity from an historical perspective. Part III acclimates the reader …

A Constitutional Case For Governmental Cooperation With Faith-Based Social Service Providers, Carl H. Esbeck

Faculty Publications

This Article will refer to separationism as based on "older assumptions." The Court's presuppositions concerning the nature and contemporary value of religion and the proper role of modem government underlie what will be referred to as a "traditional analysis" of the case law. Part I is a partial overview of the Supreme Court's cases since Everson, and has the goal of making the strongest arguments-within the framework of separationism-for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers.

Part II is about separationism's major competitor, a theory centered on the unleashing of personal liberty to …

Perspectives On Constitutional Theory--Foreword, Evan Tsen Lee

UC Law Constitutional Quarterly

No abstract provided.

Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz

UC Law Constitutional Quarterly

Scholars have argued that the enactment of our Constitution was the epitome of an American constitutional consensus. This Article, however, affirms that a vibrant debate about the Constitution continued long after its passage. By examining neglected original constitutional sources, this Article demonstrates that a dynamic tension existed throughout the nineteenth century about the meaning and implementation of "popular sovereignty," the principle underpinning our constitutional tradition.

Judicial Supremacy And Nonjudicial Interpretation Of The Constitution, Scott E. Gant

UC Law Constitutional Quarterly

When do, and when should, actors other than judges interpret the Constitution? Over time, this question has received attention from many prominent political leaders. In recent years, it has generated a rich yet underexposed academic debate. This Article seeks to draw attention to and further that debate.

This Article has three main parts. The first is a survey of responses in academic literature to the question "who interprets?" The author argues that although judicial supremacy is widely embraced as a model of constitutional interpretation, other accounts raise serious challenges to its descriptive power and normative appeal. The second part of …

Justice Curtis's Dissent In The Dred Scott Case: An Interpretive Study, Stuart A. Streichler

UC Law Constitutional Quarterly

In the Dred Scott case, the United States Supreme Court ruled that no black, whether slave or free, could ever be a citizen of the United States and that Congress had no constitutional authority to prohibit slavery in federal territories. While this historically important case has been the subject of extensive commentary over the years, scholars have refrained from in-depth inquiry into Justice Curtis's dissent.

This Article analyzes Curtis's opinion in that case, with a view to unraveling his approach to constitutional interpretation. Contrary to the limited reading of citizenship attributed to Curtis, this Article argues that his theory of …

Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine

UC Law Constitutional Quarterly

In recent years, American legal scholars have relied increasingly on Jewish law. Scholars have employed concepts from Jewish law in the analysis of health law, criminal law, legal ethics, legal interpretation, and constitutional law. Despite this trend, legal scholars continue to debate the value and validity of applying Jewish legal principles to American legal theory. This Article explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, this Article argues that certain conceptual similarities between American …

Private Financing Of Criminal Prosectuions And The Differing Protections Of Liberty And Equality In The Criminal Justice System, Joseph E. Kennedy

UC Law Constitutional Quarterly

Government prosecutors have begun accepting, and in some cases soliciting, voluntary contributions from the private sector in order to finance certain types of criminal prosecutions. Such private financing introduces a new tension between society's interest in punishing the guilty and society's interest in equal treatment by government. Private financing of criminal prosecution also raises interesting questions as to whether institutions, as opposed to individuals, can be biased by money.

This Article concludes that private financing in any of its likely forms threatens important equality interests. Part I argues that conflict-of-interest rules provide the only protection for important equality interests implicated …

And The Truth Shall Make You Free: Trust As A First Amendment Defense In Tortious Interference With Contract Cases, Robert L. Tucker

UC Law Constitutional Quarterly

This Article traces the development of the tort of tortious interference with contract from its early English antecedents through the first and second Restatements. The Article discusses the case law that has generally established a "privilege" for the communication of truthful information. This "privilege" was recognized by the American Law Institute in § 772(a) of the Restatement (Second) of Torts.

The article then considers whether the recognition of a "privilege" for the communication of truthful information is required under the First Amendment to the United States Constitution. It concludes that, under applicable United States Supreme Court precedents, the communication of …

Tort Reform In The Wake Of United States V. Lopez, Patrick Hoopes

UC Law Constitutional Quarterly

This Note discusses the extent to which federal tort reform measures would be constitutionally valid in light of the Supreme Court's decision in United States v. Lopez, which invalidated a federal statute criminalizing guns in schools. The Lopez Court, recognizing that the federal government was one of enumerated powers, held that the Commerce Clause granted Congress the power to regulate only those activities which had a substantial effect on interstate commerce. Specifically, this Note examines the constitutionality of a current proposal to limit punitive damage awards in nearly all tort actions. The heavy financial burden runaway juries impose on the …

Mixed Questions And The Scope Of Federal Habeas Review: Consideration Of Miranda Claims In Thompson V. Keohane, Rachel Meyers

UC Law Constitutional Quarterly

Federal habeas corpus review has a long historical tradition, at common law and in the United States. Over time, federal habeas review has expanded to its modern dimensions, which permit lower federal courts to overturn decisions of the states' highest courts. When federal courts review claims raised by state prisoners, the mandate to protect individual constitutional rights competes with other fundamental constitutional values: the promotion of federalism, in the form of respect for state court judgments, finality and fairness.

This Comment analyzes a federal habeas claim of a Miranda violation, a claim which has traditionally been deemed a "mixed question" …

Engineering Perfect Offspring: Devaluing Children And Childhood, Wendy Anton Fitzgerald

UC Law Constitutional Quarterly

In this Essay, Professor Fitzgerald observes that the law and practice governing medical treatment decisions for seriously ill and disabled newborn children requires physicians and parents to compare such children with an unstated norm. She discerhs that our jurisprudence informs that unstated norm with an exclusive model of legal personhood, that of the autonomous individual, an independent and self-sufficient adult. Parents and physicians may conclude, then, that a seriously ill or disabled newborn child who cannot eventually become an autonomous adult should not receive life-saving or life-prolonging treatment. Professor Fitzgerald suggests that this treatment paradigm parallels a cultural resurgence of …

Two Precipices, One Chasm: The Economics Of Physician-Assisted Suicide And Euthanasia, Nelson Lund

UC Law Constitutional Quarterly

In Washington v. Glucksberg and Vacco v. Quill, the Supreme Court refused to create a constitutional right to assisted suicide, but apparently left Congress and the states wide discretion to experiment with new legislation. For the moment, most jurisdictions seem inclined to preserve the traditional legal prohibitions against this practice. Deeper forces in our society, however, may soon push us toward accepting assisted suicide, and much harsher forms of hastened dying as well.

This Article presents two distinct but related arguments. Part I argues that legalizing assisted suicide, whether through judicial or legislative action, would be a mistake because the …

The Supreme Court And Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia, David Orentlicher

UC Law Constitutional Quarterly

In its physician-assisted suicide cases, the United States Supreme Court ostensibly affimned the distinction between "passive" and "active!' steps to end a patient's life. The Court reiterated its recognition of a right to refuse life-sustaining treatment but rejected a right to physician-assisted suicide. However, Professor Orentlicher argues that, in responding to concerns about unrelieved suffering in some dying patients, the Court compromised the very distinction it was trying to preserve. The Court indicated that suffering patients can turn to "terminal sedation," a practice which often is effectively a "slow euthanasia." The Court not only blurred the distinction between active and …

The Hunter Doctrine And Proposition 209: A Reply To Thomas Wood, Vikram David Amar, Evan H. Caminker

UC Law Constitutional Quarterly

In this short reply to the article by Thomas Wood, Professors Amar and Caminker argue that Mr. Wood has seriously misread and misunderstood the Supreme Court cases most relevant to Proposition 209's constitutionality. Importantly, Mr. Wood has failed to account for specific and straightforward language in the cases that directly contradicts his reading. Moreover, Mr. Wood fails to interpret the language of each opinion in the context of the entire case - and in the context of equal protection law generally - as careful constitutional analysis requires. For these reasons, Professors Amar and Caminker continue to believe that if lower …

Unauthorized Embryo Transfer At The University Of California, Irvine Center For Reproductive Health, Supriya Kakkar

UC Law Constitutional Quarterly

Two couples, wanting desperately to conceive, go for help to the same fertility excruciating procedure. Couple A fights the odds and walks away with their miracle baby. Couple B is not so lucky. They walk away empty handed. Years later, a horrifying truth is revealed. Without the consent or knowledge of either couple, doctors transferred Couple B's embryos to Couple A. Couple A finds out that their miracle baby is genetically the offspring of Couple B. Now, Couple B is suing for custody. Who wins?

Doctors at the University of California, Irvine fertility clinic transferred embryos without the approval or …

The Constitionality Of The Line Item Veto Act Of 1996: Three Potential Sources For Presidential Line Item Veto Power, Catherine M. Lee

UC Law Constitutional Quarterly

For over a century, Presidents, regardless of their political affiliations, have sought the authority to exercise a line item veto on legislation passed by Congress. Such power was desired because it was believed that the line item veto would increase the President's leverage in negotiations with Congress and help them root out special interest provisions buried in omnibus bills. Despite Presidents' desire to attain a line item veto, Congress did not grant such authority because its constitutionality was at issue. Constitutional scholars asserted that the line item veto would violate the separation of powers doctrine because the President would be …

Quetzalcoatl, Crosses And The New Constitutional Value Of Multiculturalism, Lori A. Adasiewicz

UC Law Constitutional Quarterly

This Note examines two recent conflicting Ninth Circuit decisions concerning religious displays on publicly-owned land and advocates for the uniform application of a clear standard to this recurring question. In Carpenter v. City and County of San Francisco, the Ninth Circuit condemned the city's ownership of the Mount Davidson cross, applying Article I, section 4 of the California Constitution. In Alvarado v. City of San Jose, it used the more lenient federal constitutional standard to approve the city's erection and maintenance of a statute of Quetzalcoatl, an Aztec or pagan deity. The different approaches in these two functionally similar cases …

Commentary, At Issue – House Rules: Is A Supermajority Requirement For Tax Hikes Constitutional? – No, The Framers Had Only A Simple Majority In Mind, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The supermajority requirement undermines the constitutional principles of Article I and separation of powers. Rule XXI is not merely a rule of internal procedure; it determines when bills get presented to the Senate and the president.

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …

Making Constitutional Doctrine In A Realist Age, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …

Congressional Self-Discipline: The Constitutionality Of Supermajority Rules, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990, it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce. It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.

A Law Professor’S Guide To Natural Law And Natural Rights, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Law professors nowadays mention natural law and natural rights on a regular basis, and not just in jurisprudence. Given that the founding generation universally subscribed to the idea of natural rights, this concept regularly makes a prominent appearance in discussions of constitutional law. One simply cannot avoid the concept if one is to explain Justice Samuel Chase's well-known claim in Calder v. Bull that "[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power .... An ACf of the Legislature (for I cannot call it a law) …

Dual Sovereignty And The Double Jeopardy Clause: If At First You Don't Convict, Try, Try, Again , Robert Matz

Fordham Urban Law Journal

This Note argues that the application of the dual sovereignty doctrine to cases involving successive state and federal prosecutions, where the initial prosecution resulted in an acquittal, violates the Double Jeopardy Clause of the Fifth Amendment. Part I discusses the rationale for the prohibition against double jeopardy and the principle of dual sovereignty. Part II outlines the Supreme Court jurisprudence regarding successive prosecutions brought by independent sovereigns. Part III reviews the arguments against applying the dual sovereignty doctrine in the context of successive prosecutions where the initial prosecution resulted in an acquittal and proposes that the Supreme Court reconsider the …

Liberalized Immigration As Free Trade: Economic Welfare And The Optimal Immigration Policy, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Confrontation And The Definition Of Chutzpa, Richard D. Friedman

Articles

You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …

Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson

Faculty Scholarship

In this article, Professor Nicholas J. Johnson explores the parallels between the right of armed self-defense and the woman's right to abortion. Professor Johnson demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right to armed self-defense. Professor Johnson uncovers common ground between the gun and abortion rights - two rights that have come to symbolize society's deepest social and cultural divisions - divisions that prompt many to embrace the abortion right while summarily rejecting the gun right. Unreflective disparagement of the gun right, he argues, threatens the vitality of the abortion …

A Perry, Perry Poor Policy Promoting Prejudice Rebuked By The Reality Of The Romer Ruling: Thomasson V. Perry, Amy E. Pizzutillo

Villanova Law Review

No abstract provided.