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Articles 1 - 30 of 66
Full-Text Articles in Law
The Active Vices, Benjamin Johnson
The Active Vices, Benjamin Johnson
Journal Articles
Alexander Bickel's pathbreaking idea of the "passive virtues" attempted to explain and justify the Supreme Court's power to control its docket. He proposed that the Court's extensive discretion allows it to remain passive and avoid politically perilous cases, preserving its institutional legitimacy until such time as durable principles are at stake. This theory remains one of the most influential ideas in legal scholarship, but is dangerously incomplete. Discretion is a double-edged sword, empowering the Court not only to avoid politics, but also to engage in it. In other words, a policy-motivated Court can use its agenda-setting power to target highly …
Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French
Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French
Journal Articles
Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …
Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero
Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero
Journal Articles
There is more to the U.S. Supreme Court’s recent decision in Ramos v.
Louisiana than its holding requiring unanimous state jury verdicts via the
incorporation doctrine. The underlying debate among the Justices in Ramos
about the salience of race in the law is a window into the current cultural
moment. After identifying the racial debate underlying the Justices’ views in
Ramos, this Essay shows how the same pattern emerges in our social and
legal debates around vigilante policing of Black Americans, including a
close-up look at the recent killing of Ahmaud Arbery. Social psychology
teaches us that society stereotypes …
Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee
Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee
Journal Articles
In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.
The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …
Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee
Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee
Journal Articles
Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …
The Constitutionalization Of Fatherhood, Dara Purvis
The Constitutionalization Of Fatherhood, Dara Purvis
Journal Articles
Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …
The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports
The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports
Journal Articles
For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment's warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as "reasonable to believe" in describing how exigent the situation must be to permit the police to proceed without a warrant. Nor surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.
To resolve this conflict and provide guidance to law enforcement …
Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan
Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan
Penn State Journal of Law & International Affairs
No abstract provided.
State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews
State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews
Journal Articles
Deriding the state action doctrine is one of the great pastimes of American constitutional law. It has been described as a shamble and "incoherent." On its face, the core concept seems straightforward enough constitutional rights are rights against the government. But what counts as the "state action" that triggers the protection of rights seems to shift, maddeningly, from case to case in the Supreme Court's state action jurisprudence.
In this article, I aim to help make some sense of why the state action doctrine has developed as it has by setting it in a comparative and historical frame. It can …
The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports
The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports
Journal Articles
This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.
In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …
Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle
Journal Articles
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …
Heien'S Mistake Of Law, Kit Kinports
Heien'S Mistake Of Law, Kit Kinports
Journal Articles
The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …
Elusive Equality: Reflections On Justice Field’S Opinions In Chae Chan Ping And Fong Yue Ting, Victor C. Romero
Elusive Equality: Reflections On Justice Field’S Opinions In Chae Chan Ping And Fong Yue Ting, Victor C. Romero
Journal Articles
For immigration scholars, Justice Field is perhaps best remembered for his majority opinion in Chae Chan Ping v. United States, the Supreme Court’s decision upholding Chinese exclusion, and credited for introducing the plenary power doctrine to immigration law. Yet, despite the opinion’s xenophobic rhetoric reflecting his personal views of the Chinese, Justice Field dissented in Fong Yue Ting v. United States, reasoning that, once they became lawful residents, the Chinese were entitled to be treated as equals under the law regardless of citizenship, a position supported by his earlier federal circuit court opinion in Ho Ah Kow v. …
Insights From Canada For American Constitutional Federalism, Stephen F. Ross
Insights From Canada For American Constitutional Federalism, Stephen F. Ross
Journal Articles
The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero
Journal Articles
Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …
Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna
Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna
Journal Articles
No abstract provided.
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Journal Articles
The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory, structural and institutional …
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Journal Articles
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …
Iqbal And Supervisory Immunity, Kit Kinports
Iqbal And Supervisory Immunity, Kit Kinports
Journal Articles
Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that the doctrine of …
The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin
The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin
Journal Articles
In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to …
Introduction Of Judicial Review In Italy-Transition From Decentralized To Centralized Review (1948-1956)-A Successful Transplant Case Study, Louis Del Duca
Introduction Of Judicial Review In Italy-Transition From Decentralized To Centralized Review (1948-1956)-A Successful Transplant Case Study, Louis Del Duca
Penn State International Law Review
No abstract provided.
Introduction To The Ials Conference On Comparative Constitutional Law, Louis Del Duca, Patrick Del Duca, Gianluca Gentili
Introduction To The Ials Conference On Comparative Constitutional Law, Louis Del Duca, Patrick Del Duca, Gianluca Gentili
Penn State International Law Review
No abstract provided.
The Constitutional Role Of Transnational Courts: Principled Legal Ideas In Three-Dimensional Political Space, Kim Lane Scheppele
The Constitutional Role Of Transnational Courts: Principled Legal Ideas In Three-Dimensional Political Space, Kim Lane Scheppele
Penn State International Law Review
No abstract provided.
Hybridization: A Study In Comparative Constitutional Law, John Mceldowney
Hybridization: A Study In Comparative Constitutional Law, John Mceldowney
Penn State International Law Review
Viewing constitutional law from a global perspective informs us about trends and concurrences that might otherwise go unnoticed. The main focus for this paper is how a new European legal tradition is being forged from two of the most influential Western traditions, the common and civil law. The term hybridization is used to refer to this phenomenon whereby there is convergence between different legal systems. This does not necessarily alter national sovereignty or substitute one system over another. It cannot be measured by success or failure of one legal system over another. It is a common sharing that is best …
Is Constitutionalism Bad For Intersectional Feminists?, Beverley Baines
Is Constitutionalism Bad For Intersectional Feminists?, Beverley Baines
Penn State International Law Review
No abstract provided.
Unsafe Haven: Could Article 3 Of The U.N. Convention Against Torture Prevent The Extradition Of Terrorist Suspects To U.S. Custody, Faridah Jalil, Che Norlia Mustafa
Unsafe Haven: Could Article 3 Of The U.N. Convention Against Torture Prevent The Extradition Of Terrorist Suspects To U.S. Custody, Faridah Jalil, Che Norlia Mustafa
Penn State International Law Review
No abstract provided.
Adjudicating Socio-Economic Rights Under A Transformative Constitution, Linda Stewart
Adjudicating Socio-Economic Rights Under A Transformative Constitution, Linda Stewart
Penn State International Law Review
No abstract provided.
Methodological Challenges In Comparative Constitutional Law, Vicki Jackson
Methodological Challenges In Comparative Constitutional Law, Vicki Jackson
Penn State International Law Review
No abstract provided.
Teaching Constitutional Law In Malaysia: The Universiti Kebangsaan Malaysia's Experience, Henk Botha
Teaching Constitutional Law In Malaysia: The Universiti Kebangsaan Malaysia's Experience, Henk Botha
Penn State International Law Review
No abstract provided.
Poverty And Constitutional Rights, Monica Pinto
Poverty And Constitutional Rights, Monica Pinto
Penn State International Law Review
No abstract provided.