Law Commons^™

A Theoretical Justification For Special Solicitude: States And The Administrative State, Matthew Melamed

Matthew S Melamed

In Massachusetts v. EPA, the Court declared that the state of Massachusetts, because it sought to protect a quasi-sovereign interest, was “entitled to special solicitude in our standing analysis.” The discussion of special solicitude consisted of little more than one page in the Court’s opinion. This paper addresses the question of whether a theoretical justification for special solicitude for state standing exists, and finds that it does.

The strongest argument for special solicitude is rooted in federalist concerns, though not the concerns that provide the foundation for originalist states’ rights theories. While traditional states’ rights arguments seek to restrict federal …

Medellin, The President’S Foreign Affairs Power And Domestic Law, Arthur M. Weisburd

Arthur M. Weisburd

In this article, Professor Weisburd explores the implications of Medellín v. Texas for the President’s authority to affect domestic law through reliance on his authority to conduct the foreign affairs of the United States. He argues that the Court was correct to reject arguments that, on the facts of the case, the President could look to a delegation of authority from Congress or from the Senate as treaty-maker, or that President could treat the matter as resting on his power to settle claims against foreign governments, or that the President’s obligation to “take care that the laws be faithfully executed” …

An Insurrection Act For The 21st Century, Thaddeus Hoffmeister

Thaddeus Hoffmeister

Throughout America’s history there has been a fundamental disagreement over how best to deal with large scale civil disorder within the United States. Whether brought about because of natural disaster, riot, rebellion, public health emergency or terrorism, Americans have disagreed on who should manage the civil unrest associated with a domestic emergency. More specifically, they differ, especially when military intervention is required, over whether the state or federal government should take the lead in responding to these crises.

Lately, it appears that the pendulum has swung in favor of increased federal government involvement, especially with respect to providing a larger …

Strict In Theory, But Accommodating In Fact?, Ozan O. Varol

Ozan O Varol

No abstract provided.

Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power

Garrett Power

In the American constitutional system the sovereign has the power to enact “regulations which are necessary to the common good and general welfare.” But the Fifth Amendment to the United States Constitution proscribes that : “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” And the question of whether a sovereign regulation has “taken” private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles …

Apartheid Baltimore Style: The Residential Segregation Ordinances Of 1910-1913, Garrett Power

Garrett Power

On May 15, 1911, Baltimore Mayor J. Barry Mahool signed into law an ordinance for “preserving the peace, preventing conflict and ill feeling between the white and colored races in Baltimore City.” This ordinance provided for the use of separate blocks by African American and whites and was the first such law in the nation directly aimed at segregating black and white homeowners. This article considers the historical significance of Baltimore’s first housing segregation law.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions. 2008 Edition., Garrett Power

Garrett Power

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2008) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests …

Meade V. Dennistone: The Naacp's Test Case To "...Sue Jim Crow Out Of Maryland With The Fourteenth Amendment.", Garrett Power

Garrett Power

In 1936, Edmond D. Meade, an African-American pastor at Israel Baptist Church in Baltimore, contracted to purchase a home in an almost exclusively white block of Baltimore City. Meade’s purchase was followed by a suit by the white residents to block the use of the home by the new buyers. This work examines the legacy of Meade v. Dennistone, the effect of the decision on “free market forces” and concludes by considering the impact of the decision – and the community response – on the final judicial rejection of the “separate but equal” treatment of the races.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions. 2009 Edition., Garrett Power

Garrett Power

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2009) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2007, Garrett Power

Garrett Power

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2007) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

This Lemon Comes As A Lemon. The Lemon Test And The Pursuit Of A Statute’S Secular Purpose., Josh Blackman

Josh Blackman

Lemon is a curious fruit. The Lemon Test, derived from Lemon v. Kurtzman, is a three-pronged test to determine whether a government action violates the Establishment Clause of the First Amendment. This article will focus on the first prong of the Lemon Test, which queries whether a statute has a “secular purpose.” While many other articles have focused on the secular aspect of this prong, few have considered what exactly purpose means. Before piercing the citric skin of the purpose prong of the Lemon test, I consider intentionalism and purposivism as jurisprudential schools of thought. What is the purpose behind …

I Want A Refund: The Inadequate Opinion Of Northwest Energetic Services, Llc V. California Franchise Tax Board, Nathanael Cho

Nathanael Cho

The California Franchise Tax Board has received numerous claims for refunds from LLCs based on two cases that found a levy charged to LLCs registered in California unconstitutional because it was not fairly apportioned. The California Court of Appeal in Northwest Energetic Services, LLC v. California Franchise Tax Board held that the levy required by section 17942 of the California Revenue and Taxation Code violated the Commerce Clause and was therefore unconstitutional. In making its decision, the Appellate Court focused on the levy’s reference to “total income,” which the Appellate Court determined was income “wherever earned, and without apportionment according …

Youngstown’S Fourth Tier. Is There Zone Of Insight Beyond The Zone Of Twilight?, Josh Blackman, Elizabeth Bahr

Josh Blackman

Justice Jackson’s tripartite analysis in Youngstown Sheet & Tube serves as the seminal framework to resolve national security and separation of powers issues. Examining national security and separation of powers cases that have employed the flexible and functionalist Youngstown framework yields a curious, and previously unidentified revelation. This article addresses this irregularity, and explains how in fact the Supreme Court has adopted an implied fourth tier of Youngstown. In some cases, the Supreme Court ostensibly applied the Youngstown framework, yet the Court’s analysis cannot be reasonably pigeonholed into one of the three tiers. Thus, the Court has implicitly recognized a …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Taking Lochner Out Of The Closet, Joseph F. Morrissey

Joseph F. Morrissey

This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.

With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such …

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …

To "Kill The Indian ... And Save The Man": A Constitutionalist Critique Of Civic Education, Mark E. Brandon

Mark E Brandon

The point of this article is to consider the implications of civic education in a constitutionalist order. The article begins with a study of the earliest attempts at civic education in North America: the various efforts by Europeans and later by agents of the United States to “civilize” the native tribes through education. The article then presents approaches of three proponents of civic education today – Lynne Cheney, Amy Gutmann, and Stephen Macedo – comparing their aims and methods with programs whose targets were children of the tribes. Finally, the article assesses the compatibility of programs for civic education with …

Why Should The First Amendment Protect Government Speech When The Government Has Nothing To Say?, Steven G. Gey

Steven G. Gey

It is an uncontroversial fact of political life that the government sometimes must communicate with the public. For several years, however, the Supreme Court has used this uncontroversial fact as a justification for developing a First Amendment doctrine of government speech. This new doctrine does more than simply recognize the government's authority to speak out on matters of public policy; as envisioned by the Supreme Court, the doctrine also allows the government to silence or coerce the speech of those in the private sector who wish to speak out against the government. In much the same way that private speakers …

Refining The Democracy Canon, Christopher Elmendorf

Christopher S. Elmendorf

This Essay responds to Professor Rick Hasen’s forthcoming article, The Democracy Canon. Hasen identifies an intriguing and until now largely unnoticed practice in many state courts--to wit, the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters' access to the polls and of rendering ballots eligible to be counted. Hasen defends this “pro voter” canon of interpretation and commends it to the federal courts. I argue that Hasen’s Canon cannot stand on the normative foundation he has poured for it, and that the federal courts’ adoption of the Canon would probably have significant costs (for example, …

A Civic Critique Of Democracy: Civic Organizing As The Generating Force Of A Civic Concept Of Law, Palma Joy Strand

palma joy strand

A Civic Critique of Democracy: Civic Organizing as the Generating Force of a Civic Concept of Law Palma Joy Strand ABSTRACT Judge Sonia Sotomayor’s controversial “wise Latina” comment embodies the view that law is socially constructed—that “we” make it and that it thus may vary according to who “we” are. Current theories of “popular constitutionalism,” “democratic constitutionalism,” and “demosprudence” take this several steps further and begin to explore the idea that the “we” that makes constitutional law is not just judges but society more broadly. These theories matter because they envision an active role for citizens in law creation, but …

Too Little, Too Late? Why President Obama’S Well-Intentioned Reforms Of The Military Commissions May Not Be Enough To Save Them, John M. Bickers

John M. Bickers

This article argues that the Bush Administration made three critical choices that destined the commissions to failure: the relatively non-public nature of the commissions, the original possibility that they might rely on coerced testimony, and an unsettling focus on those whose offenses consisted of not being “proper” combatants. President Obama’s proposed reforms address the first issue in part, and the second completely, but the third not at all. Failure to repair fully these problems, the article suggests, will prevent meaningful use of the commissions to demonstrate to the world the deeds of al Qaeda. Without further reform, the military commissions …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Jennifer S. Hendricks

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social …

Triggering Congressional War Powers Notification: A Proposal To Reconcile Constitutional Practice With Operational Reality, Geoffrey S. Corn

Geoffrey S. Corn

In 1973, Congress overcame President Nixon’s veto to enact the War Powers Resolution. That law was intended to restore the Founder’s vision of cooperative war-making authority between the two political branches. Since that time, two areas of uncertainty have plagued the efficacy of the law: the arguable intrusion into the exclusive war-making authority of the President; and the uncertainty as to what events trigger the law’s obligations. In an effort to cure these defects, a group of experts recently proposed adoption of a substitute law: the War Powers Consultation Act of 2009. This proposed successor statute shifts the focus of …

Is There Really Any Good Argument Against Plural Marriage?, Ronald C. Den Otter

Ronald C Den Otter

No abstract provided.

A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly

Thomas G Donnelly

Popular constitutionalists often ignore one of the most important features of popular constitutional culture—the constitutional life of the average citizen. Although these scholars have detailed the key role played by non-judicial actors in promoting non-Article V constitutional change, they have spent little time considering how changes to constitutional meaning become part of our popular constitutional fabric. This Article fills a gap in the literature by examining how popular constitutional meaning is shaped “on the ground,” once the most recent controversy fades and constitutional life returns to normal. To that end, it focuses on a pathway that has been largely ignored …

Homes, Rights, And Communities, Paul Boudreaux

Paul Boudreaux

Homes, Rights, & Communities, by Paul Boudreaux. Homeowners associations (HOAs) and their restrictive covenants have become a way of life for millions of American families, especially in the wake of the recent housing boom. While some economically oriented writers view HOAs as a welcome manifestation of voluntary contract, others commentators argue that the often-intrusive covenants may not mirror residents’ desires and enforce a stifling conformity on our communities. In this article, Paul Boudreaux uses these criticisms and the existing law of individual rights to develop a substantive “bill of rights” for HOA residents against these covenants, using as its guiding …

Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser

Mark Strasser

A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …