Law Commons^™

Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick

Pepperdine Law Review

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …

Free Speech, Strict Scrutiny And A Better Way To Handle Speech Restrictions, Aaron Pinsoneault

William & Mary Bill of Rights Journal

When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, …

George R. R. Martin's Faith Militant In Modern America: The Establishment Clause And A State's Ability To Delegate Policing Powers To Private Police Forces Operated By Religious Institutions, Andrew Gardner

William & Mary Bill of Rights Journal

Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the …

Second Amendment Background Principles And Heller's Sensitive Places, Adam B. Sopko

William & Mary Bill of Rights Journal

Judges and commentators have widely acknowledge that history enjoys a privileged status in Second Amendment cases, but its precise role is undertheorized and rarely controls case outcomes. In particular, courts have been unable to decide "sensitive places" cases-- challenges to location-based gun laws-- in a manner that adheres to Supreme Court precedent because existing Second Amendment doctrine lacks a test for sensitive places cases that uses history and tradition in a principled way. This Article proposes a solution to address that problem.

An untapped source of guidance is the Court's takings jurisprudence. Interpreting their respective constitutional provisions, Justice Scalia observed …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

The Nature Of Standing, Matthew Hall, Christian Turner

William & Mary Bill of Rights Journal

Most academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: "The judicial Power shall extend to all Cases, in Law and Equity," arising under various circumstances. The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of …

Democratizing Education Rights, Joshua E. Weishart

William & Mary Bill of Rights Journal

If the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy-- not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic's existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate …

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

Cruel And Unusual: Closing The Door On Juvenile De Facto Life Sentences, Thomas Garrity

Catholic University Law Review

There currently exists a split amongst the Federal Circuit Courts that stands ripe for review. The Supreme Court laid down clear precedent in its landmark decisions of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama that capital punishment and life without parole are cruel and unusual as applied to juvenile non-homicidal offenders categorically and as applied to juvenile homicidal offenders without consideration of youth as a mitigating factor. There, however, was a door left open by these cases that allowed for judges to side-step the Court’s mandate. Using excessively long term-of-years sentences—longer than the most hopeful of estimates …

Against Congressional Case Snatching, Ronald J. Krotoszynski, Atticus Deprospro

William & Mary Law Review

Congress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of …

The Long History Of Feminist Legal Theory, Tracy Thomas

Con Law Center Articles and Publications

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred …

When Guns Threaten The Public Sphere: A New Account Of Public Safety Regulation Under Heller, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only …

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

A Proper Burial, Robert L. Tsai

Faculty Scholarship

This is an invited response to Professor Mark Killenbeck's article, "Sober Second Thoughts? Korematsu Reconsidered." In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned …

Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe

Scholarly Works

This chapter introduces the structure of the government in the United States and the concept of “separation of powers" among the federal, state, and local governments. It introduces core legal principles from the U.S. Constitution that frame the authority of the government to enact and enforce laws to protect and promote the public's health. These Constitutional principles are essential for the health advocate and leader to understand because every federal, state, and local law must comply with them. The core principles include the enumerated powers of the federal government and the broad plenary powers of state and local governments—which we …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Foreword: A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, Rona Kaufman

Law Faculty Publications

One hundred years have passed since (white) women attained the right to vote. In the century since the Nineteenth Amendment was ratified, American women have transitioned from an existence as mere objects of history to becoming active subjects of history. In 2019 and 2020, many programs and conferences were organized to celebrate the achievements of America's women and commemorate the 100th anniversary of women's suffrage. The Section on Women in Legal Education hosted a program at the January 2020 American Association of Law Schools (AALS) Annual Meeting titled, “A Century Since Suffrage: How Did We Get Here? Where Will We …

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

(Un)Masking The Truth - The Cruel And Unusual Punishment Of Prisoners Amidst The Covid-19 Pandemic, Ariel Berkowitz

Touro Law Review

No abstract provided.

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.

Second Amendment Animus, Jacob D. Charles

Faculty Scholarship

The Supreme Court’s animus doctrine has proven surprisingly adaptive. The Court has employed the doctrine not just in the typical equal protection context from which it arose, but also to claims that religious conduct or beliefs are the target of legislative hostility. Animus law and scholarship are flourishing after several invocations of the doctrine in the high Court’s recent Terms. Coinciding with these developments, gun-rights advocates and other supporters have increasingly railed against the hostility with which they believe government officials are treating the Second Amendment. This Essay connects these developments, mapping three types of gun-supporter claims that sound in …

Freedom Of The Press In U.S. Protests, Abigail Rosenthal

Human Rights Brief

No abstract provided.

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Second Amendment Equilibria, Darrell A. H. Miller

Faculty Scholarship

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although …

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Elisabeth Haub School of Law Faculty Publications

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.