Law Commons^™

Rethinking The Order Of Battle In Constitutional Torts: A Reply To John Jeffries, Nancy Leong

NULR Online

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims. That experiment began with Saucier v. Katz, in which the Court held that lower courts mustdecide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity. The Court’s rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then …

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal, Joyce Lee Malcolm

NULR Online

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community. Turning to the practical consequences of Chicago and Washington, D.C.'s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny …

Salazar V. Buono: The Perils Of Piecemeal Adjudication, Lisa Shaw Roy

NULR Online

The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique. Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment? Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question. Salazar’s complicated web of facts and procedural history precluded the Court from …

Salazar V. Buono And The Future Of The Establishment Clause, Christopher C. Lund

NULR Online

Commentators often complain that Establishment Clause jurisprudence is incoherent and unprincipled. That accusation usually seems overwrought—perhaps we should not expect so much consistency from a Court that decides only the cases that come before it, holds multiple values, operates with continually changing personnel, and gives significant but unquantifiable weight to precedent. Yet of the areas of Establishment Clause litigation, this complaint carries the most force in the context of passive-display cases—cases where the government passively displays a religious symbol, like a cross or a crèche, a Ten Commandments monument, or an illuminated Bible. Here the critics have a point.

Salazar V. Buono: The Cross Between Endorsement And History, Mary Jean Dolan

NULR Online

The striking image of a white cross on stark rock, silhouetted against the desert sky, now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation. The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in the public square. Competing approaches stress either preserving history or avoiding government endorsement of religion; this brief article analyzes a potential new synthesis suggested by Buono.

The original cross war memorial was erected in 1934 by a local group …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian Bartrum

NULR Online

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy. But, in the intervening months, the case has gotten more and more interesting. First, most members of the Court did—in at least some way—reach the substantive merits in the decision; …

Procreation, Harm, And The Constitution, Carter Dillard

NULR Online

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what …

The Intersection Of Constitutional Law And Civil Procedure: Review Of Wholesale Justice—Constitutional Democracy And The Problem Of The Class Action Lawsuit (Part Ii), Douglas G. Smith

NULR Online

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional. Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent. I then set forth Professor Redish’s proposals for reform, including increased scrutiny of class actions to weed out “faux” class actions that benefit lawyers but not class members, abandonment of the opt-out procedure under Rule 23 in favor of an opt-in procedure …

The Intersection Of Constitutional Law And Civil Procedure: Review Of Wholesale Justice—Constitutional Democracy And The Problem Of The Class Action Lawsuit, Douglas G. Smith

NULR Online

Much ink has been spilled over the class action device. Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice. Seldom does a work break new ground in a field that has been plowed as often as that of class actions. Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception.

In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional …

Pleasant Grove City V. Summum: Monuments, Messages, And The Next Establishment Clause, Lisa Shaw Roy

NULR Online

The facts of Pleasant Grove City v. Summum are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display. Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court. During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) …

Forced Labor, Revisited: The Thirteenth Amendment And Abortion, Andrew Koppelman

Faculty Working Papers

Many recent works on the Thirteenth Amendment break new ground, deploying the amendment in new and creative ways. This is not one of them. I here restate an argument I made twenty years ago, defending abortion rights on the basis of the amendment. I then consider how the work was received, offer some amendments to the argument, and conclude with some reflections on how, perhaps, it can have more influence in the future.

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

Harmful Speech And The Culture Of Indeterminacy, Anthony D'Amato

Faculty Working Papers

I advocate two propositions in this Essay: the constitutional law of at least one category of content regulation of free speech is indeterminate, and recognition of this indeterminacy has been and ought to continue to be the Supreme Court's decisional basis for protecting speech against content regulation. Milkovich is worth examining at some length, not only because of the Court's failure to come up with general guidelines (after all, pragmatic indeterminacy predicts that failure!), but also because what the Court did say cannot even guide the lower court on remand.

Constitutional Authority And Subversion: Egypt's New Presidential Election System, Kristen Stilt

Faculty Working Papers

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to …

Constitutional Politics And Balanced Budgets, Nancy Staudt

Faculty Working Papers

Unbalanced budgets have sparked decades of debate among legislators, scholars, and the public at large. Although the controversy has abated somewhat in recent years, many continue to believe that Congress has a tendency to pursue a level of public debt that is both inefficient and unfair. Foremost among those who criticize the federal budgeting process are fiscal constitutionalists, a group of public choice scholars who believe the constitutional constraints are the only means by which the public will obtain protection from legislative fiscal irresponsibility. This article explores the public choice argument for a balanced budget amendment and argues that it …

Taxation Without Representation, Nancy Staudt

Faculty Working Papers

Poll taxes are unconstitutional and yet Americans continue to link political rights to economic status. When taxpayers claim, "We pay taxes and therefore should decide how public monies are spent," they claim a privileged position in society based on their monetary contributions to the state and federal fiscal position that, by implication, nontaxpaying Americans should not have. Not only do taxpayers claim they deserve special political privileges, but the law itself continues to couple political rights to taxpaying status in ways that legal scholars have largely left unexplored. This article examines a range of political benefits tied to the payment …

Aspects Of Deconstruction: The "Easy Case" Of The Under-Aged President, Anthony D'Amato

Faculty Working Papers

When the deconstructionist says that all cases are to some degree problematic, the mainstream legal scholar gleefully pulls out a favorite crystal-clear case and asserts "not this one!" Judging from the law review commentary, the most popular of these "easy cases" concerns the constitutional mandate that the President shall be at least thirty-five years of age. Deconstructionists say that all interpretation depends on context. Radical deconstructionists add that, because contexts can change, there can be no such thing as a single interpretation of any text that is absolute and unchanging for all time.

easy case, deconstruction in law, US Constitution …

A New Political Truth: Exposure To Sexually Violent Materials Causes Sexual Violence, Anthony D'Amato

Faculty Working Papers

The Meese Commission gave this nation a new political truth that in years to come will undoubtedly play an important role in federal or state efforts to restrict or suppress speech having pornographic content. Legislators, policymakers and the general public will quote and rely upon the Commission's key finding that exposure to sexually violent materials "bears a causal relationship" to acts of sexual violence, unaware that the principal drafter of the Report played down this confidence in a separately published academic essay.

Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe

Faculty Working Papers

Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic …

Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, James E. Pfander, Jonathan L. Hunt

Faculty Working Papers

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued …

How Is Islam The Solution?: Constitutional Visions Of Contemporary Islamists, Kristen Stilt

Faculty Working Papers

This Article uses documents issued by the Muslim Brotherhood, in particular the lengthy 2007 "Political Party" Platform, and personal interviews with Brotherhood leadership to examine the group's specific goals and beliefs for the place of religion within the structure of the Egyptian legal system. While many important angles need to be explored, I focus on one topic that has drawn the most attention to the Brotherhood, the place of religion in the state, or religion defined and enforced by state institutions. I show that the Brotherhood carefully acknowledges the existing constitutional structure and jurisprudence on the position of Islam in …