Law Commons^™

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Nevada Law Journal

No abstract provided.

“Liquidated Damages” In Guest Worker Contracts: Involuntary Servitude, Debt Peonage Or Valid Contract Clause?, Maria L. Ontiveros

Nevada Law Journal

No abstract provided.

The Thirteenth Amendment And Minimum Wage Laws, Ruben J. Garcia

Nevada Law Journal

No abstract provided.

Challenging Federalism: How The States’ Loud Constitutional Provocation Is Being Met With Silence, Jennifer M. Haidar

Journal of Legislation

No abstract provided.

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Federalism And The Right To Decide Who Decides, Andrew B. Ayers

Villanova Law Review

No abstract provided.

Neoformalist Constitutional Construction And Public Employee Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article examines, evaluates, and prescribes improvements to a familiar form of constitutional construction favored by neoformalists—the preference for rules over standards. Constitutional law development can be understood as being composed of two judicial tasks—interpretation and construction. Judicial interpretation of the Constitution involves determining the semantic meaning of the words contained in the document. Once that semantic meaning is determined, the interpreted meaning must be constructed into legal doctrine for application in court. Sometimes, that construction involves the articulation of the legal doctrines based on the interpreted constitutional text that will govern a particular case and those similar to it. …

Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire

Duke Law & Technology Review

The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional …

November 24, 2018: Letter About Kornacki's Book, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Letter about Kornacki's book“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 23, 2018: Thanksgiving 2018, Bruce Ledewitz

Hallowed Secularism

Blog post, “Thanksgiving 2018“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 21, 2018: Is The New York Times Right About China?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is the New York Times Right About China?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 17, 2018: The Matthew Whitaker Appointment, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Matthew Whitaker Appointment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

11th Marine Law Symposium: Legal Strategies For Climate Adaptation In Coastal New England 2018, Roger Williams University School Of Law

Marine Affairs Institute Conferences, Lectures, and Events

No abstract provided.

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber

Northwestern University Law Review

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can …

Book Review: Dershowitz On Presidential Impeachment: An Analysis Of The Case Against Impeaching Trump, Michael Conklin

ConLawNOW

This is a review of Alan Dershowitz’s 2018 book, The Case Against Impeaching Trump. Because the Constitution provides little guidance on presidential impeachment, the issue is often interpreted based on political party affiliation. Dershowitz, a strong Hillary Clinton supporter, provides a neutral examination of the issue. This review contains analysis of the current state of impeachment efforts, Dershowitz’s arguments against impeachment, and a critique of his proposed “shoe on the other foot” test.

Lockett Symposium: Recollections On The Lockett Case In The U.S. Supreme Court, Joel Berger

ConLawNOW

Recollections of an NAACP Legal Defense Fund attorney who worked with Professor Amsterdam on the Lockett case.

Lockett Symposium: Lockett As It Was, Is Now, And Ever Shall Should Be, Karen A. Steele

ConLawNOW

Lockett made clear what was constitutionally unacceptable in capital sentencing statutes (limiting the range of mitigating factors to be considered) while affirmatively heralding the significance and breadth of mitigating factors unique to the defendant that must be affirmatively and independently considered by jurors, courts and counsel; the inverse correlation between mitigating factors and disproportionate sentencing; and the interrelationship between mitigating factors and narrowing—all in an effort to provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not.” The threatened and actual use of “double-edged” aspects …

November 9, 2018: The Electoral College, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Electoral College“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Study Of Six Nations Public Library: Rights And Access To Information, Alison Frayne

Electronic Thesis and Dissertation Repository

Contemporary Indigenous public libraries play a critical role in providing access to information in Indigenous communities. My research focuses on the relationship between rights and access to information for individuals and communities within the context of Indigenous public libraries. I use a qualitative case study methodology of the Six Nations Public Library (SNPL) in Ohsweken, Ontario, Canada. Interviews were conducted with SNPL patrons and library management and with off-reserve participants from government and library associations.

I analyse four themes, library governance, rights, library value and access to information, which are outcomes of the SNPL case study findings. This analysis reveals …

In Defense Of Hearth And [Foster] Home: Determining The Constitutionality Of State Regulation Of Firearm Storage In Foster Homes, Joseph G. Duchane

Washington and Lee Law Review

No abstract provided.

November 4, 2018: The God Construct, Bruce Ledewitz

Hallowed Secularism

Blog post, “The God Construct“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 3, 2018: A Society Without A Soul, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Society Without a Soul“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Arming Public Protests, Timothy Zick

Faculty Publications

Public protests have become armed events, with protesters and counter-protesters openly carrying firearms—generally pursuant to state law. Many view the presence of firearms at protest events as wholly incompatible with the exercise of First Amendment free speech and assembly rights. Although the Supreme Court has yet to decide whether there is a Second Amendment right to openly carry firearms in public, all but a small handful of states in the United States provide some legal protection for open carry. Taking the law as it currently stands, this Article provides a comprehensive assessment of the options available to officials who seek …

Discovery Cost Allocation, Due Process, And The Constitution's Role In Civil Litigation, Martin H. Redish

Vanderbilt Law Review

The issue of discovery cost allocation, long ignored by both courts and scholars, has become something of a cause celebre in the last few years. An article which I coauthored on the subject was part of that renewed interest.' In 2011, my former student, Colleen McNamara, and I wrote an article urging a dramatic change not only in the manner of how discovery costs are allocated, but an entirely new way of understanding the concept of discovery costs. 2 Since the original promulgation of the Federal Rules of Civil Procedure in 1938, it has been universally assumed that discovery costs …

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …

Due Process, Free Expression, And The Administrative State, Martin H. Redish, Kristin Mccall

Notre Dame Law Review

The first Part of this Article will explore the theoretical foundations of procedural due process, focusing particularly on the essential due process requirement of a neutral adjudicator. We will follow that discussion with an analysis of the extent to which administrative adjudication of constitutional challenges to its regulatory authority or decisions satisfies the demands of procedural due process. After concluding that administrative regulators categorically fail to satisfy the requirements of due process, at least in the context of constitutional challenges to their regulatory authority, we will explain why the availability of post–administrative judicial review cannot cure the constitutional defect in …

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …

Murphy V. Ncaa: The Supreme Court's Latest Advance In Chemerinsky's "Federalism Revolution", Jonathan O. Ballard Jr.

Loyola of Los Angeles Law Review

No abstract provided.