Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 31 - 60 of 89

Full-Text Articles in Law

The Normalization Of Foreign Relations Law, Ganesh Sitaraman, Ingrid Wuerth Jan 2015

The Normalization Of Foreign Relations Law, Ganesh Sitaraman, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism, "the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy,” was not always the prevailing view. In the early twentieth century, …


The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair Jan 2015

The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair

Vanderbilt Law School Faculty Publications

This Article engages the two hundred year history of corporate constitutional rights jurisprudence to show that the Supreme Court has long accorded rights to corporations based on the rationale that corporations represent associations of people from whom such rights are derived. The Article draws on the history of business corporations in America to argue that the Court’s characterization of corporations as associations made sense throughout most of the nineteenth century. By the late nineteenth century, however, when the Court was deciding several key cases involving corporate rights, this associational view was already becoming a poor fit for some corporations. The …


Strange Bedfellows, Jeffrey Schoenblum Jan 2014

Strange Bedfellows, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

With the maximum rate of federal income tax at 39.6 percent, the Medicare surtax on investment income of 3.8 percent, and some state income tax rates exceeding 9 percent, taxpayers in the highest brackets have been seeking to develop strategies to lessen the tax burden. One strategy that has been receiving increased attention is the use of a highly specialized trust known as the NING, a Nevada incomplete gift nongrantor trust, which eliminates state income taxation of investment income altogether without generating additional federal income or transfer taxes. A major obstacle standing in the way of accomplishing this objective, however, …


Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King Jan 2013

Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King

Vanderbilt Law School Faculty Publications

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit …


Can The States Keep Secrets From The Federal Government?, Robert A. Mikos Jan 2012

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …


Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin Jan 2012

Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article …


Why Crime Severity Analysis Is Not Reasonable, Christopher Slobogin, Jeffrey Bellin, Et Al. Jan 2012

Why Crime Severity Analysis Is Not Reasonable, Christopher Slobogin, Jeffrey Bellin, Et Al.

Vanderbilt Law School Faculty Publications

Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place. In pursuit of this objective, his article provides the best attempt to date at dealing with the difficult issue of separating serious from not-so serious crimes (he ends up with three categories—grave, serious and minor. He then makes the enticing argument that calibrating the degree of Fourth Amendment protection according …


The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick Jan 2012

The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with …


Agency Independence After Pcaob, Kevin M. Stack Jan 2011

Agency Independence After Pcaob, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Separation of powers has a new endeavor. The PCAOB decision makes the validity of good-cause removal protections depend on the separation of adjudicative from policymaking and enforcement functions within the agency. At a minimum, within independent agencies, it preserves the second layer of removal protection only for dedicated adjudicators. But its logic extends further. In PCAOB, the demand for political supervision over rulemaking and enforcement trumped Congress's choice to preserve the independence of officials who perform those roles and also adjudicate. In that way, PCAOB reversed the consistent constitutional validation of good-cause removal protections for those who engage in adjudication. …


Comparative Empiricism And Police Investigative Practices, Christopher Slobogin Jan 2011

Comparative Empiricism And Police Investigative Practices, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …


Assessing The State Of State Constitutionalism, Jim Rossi Jan 2011

Assessing The State Of State Constitutionalism, Jim Rossi

Vanderbilt Law School Faculty Publications

State constitutions are terribly important legal documents, but their interpretation is remarkably understudied (and, of course, highly undertheorized) in the academic literature. This review essay discusses Robert Williams’s welcome new book, The Law of American State Constitutions (Oxford University Press, 2009). After summarizing the content of Williams’s book, it discusses the normative significance of his work, focusing especially on his discussion of independent state constitutions and the positive theory of interpretation he advances. The essay concludes by highlighting some areas where the field of state constitutional law is in need of further advancement, including research that positions state constitutions within …


Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley Jan 2011

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …


A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos Jan 2011

A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the …


The Four Pillars Of Constitutional Doctrine, Suzanna Sherry Jan 2011

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme …


The Right To Voice Reprised, Christopher Slobogin Jan 2010

The Right To Voice Reprised, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article appears in a symposium issue of Seton Hall Law Review on courtroom epistemology. In Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness, I argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evaluation process that addresses the relevant legal criterion, an argument based in part on the position that the Constitution can be read to entitle defendants to tell their exculpatory mental state stories. In a recent essay, Professor Lillquist takes aim at this latter rationale, which I called the …


Obama's Equivocal Defense Of Agency Independence, Kevin M. Stack Jan 2010

Obama's Equivocal Defense Of Agency Independence, Kevin M. Stack

Vanderbilt Law School Faculty Publications

You can't judge a President by his view of Article II. At the very least, only looking to a President's construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted.

President Obama is no exception, as revealed by his defense of the constitutionality of an independent agency from challenge under Article II in Free Enterprise Fund v. Public Company Accounting Oversight Board' (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEC), created to regulate accounting of public companies in the wake of …


Originalism And Summary Judgment, Brian T. Fitzpatrick Jan 2010

Originalism And Summary Judgment, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an "originalist" method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar "originalist" revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges …


The Reviewability Of The President's Statutory Powers, Kevin M. Stack Jan 2009

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with …


On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos Jan 2009

On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a …


Emotional Common Sense As Constitutional Law, Terry A. Maroney Jan 2009

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …


The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman Jan 2009

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …


An Originalism For Foreign Affairs, Ingrid Wuerth Oct 2008

An Originalism For Foreign Affairs, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …


Election As Appointment: The Tennessee Plan Reconsidered, Brian T. Fitzpatrick Jan 2008

Election As Appointment: The Tennessee Plan Reconsidered, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Tennessee's merit system for selecting judges - referred to as the Tennessee Plan - has been controversial ever since it was enacted in 1971 to replace contested elections. The greatest controversy has been whether the Plan is even constitutional. The Tennessee constitution states that all judges "shall be elected by the qualified voters" of the state. Yet, under the Tennessee Plan, the governor appoints all appellate judges, and those judges come before the voters only after a period of time on the bench and only in uncontested yes-no retention referenda. In 1977, the people of Tennessee were asked to amend …


Counterinsurgency And Constitutional Design, Ganesh Sitaraman Jan 2008

Counterinsurgency And Constitutional Design, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary. This Note explores …


"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie Jan 2008

"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie

Vanderbilt Law School Faculty Publications

In "Gonzales v. Carhart", the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court's analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other …


Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick Jan 2008

Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In the Spring 2008 issue of the Tennessee Law Review, I wrote an essay questioning whether Tennessee's merit system for selecting appellate judges - the Tennessee Plan - satisfies the requirements of the Tennessee Constitution. The Tennessee Constitution requires all judges to be elected by the qualified voters of the state, yet, under the Plan, all appellate judges are initially selected by gubernatorial appointment and then retained in uncontested referenda. I argued that both the appointment and retention features of the Plan are unconstitutional, and I recommended that the legislature refuse to reauthorize the Plan when it expires in June …


The Liberal Assault On The Fourth Amendment, Christopher Slobogin Jan 2007

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As construed by the Supreme Court, the Fourth Amendment's reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today's law on the Warren Court's adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court. This essay argues that three other …


The Constitutional Foundations Of Chenery, Kevin M. Stack Jan 2007

The Constitutional Foundations Of Chenery, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …


Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi Jan 2007

Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi

Vanderbilt Law School Faculty Publications

In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate …


The Populist Safeguards Of Federalism, Robert A. Mikos Jan 2007

The Populist Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on …