Law Commons^™

Rays Of Sunlight In A Shadow “War”: Foia, The Abuses Of Anti-Terrorism, And The Strategy Of Transparency, Seth F. Kreimer

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In the wake of the September 11 attacks, the “Global War on Terror” has marginalized the rule of law. From the dragnet detentions in the aftermath of the initial attacks, to novel and secretive surveillance authority under the Patriot Act, to the incarceration and torture of “enemy combatants,” the administration’s “war” has sought to establish zones of maneuver free of both legal constraint and of political oversight. In the first half decade of these efforts, the tripartite constitutional structure which is said to guard against executive usurpation remained largely quiescent. Opponents both inside and outside of the government turned instead …

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

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A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

Pro-Gun Scholars Twist Constitution, Kenneth Lasson

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Earlier this year, the Court of Appeals for the District of Columbia became the first federal tribunal to strike down a local gun-control law, holding that the Founding Fathers would have allowed all private citizens to arm themselves.

Face To Face With “It”: And Other Neglected Contexts Of Health Privacy, Anita L. Allen

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“Illness has recently emerged from the obscurity of medical treatises and private diaries to acquire something like celebrity status,” Professor David Morris astutely observes. Great plagues and epidemics throughout history have won notoriety as collective disasters; and the Western world has made curiosities of an occasional “Elephant Man,” “Wild Boy,” or pair of enterprising “Siamese Twins.” People now reveal their illnesses and medical procedures in conversation, at work and on the internet. This paper explores the reasons why, despite the celebrity of disease and a new openness about health problems, privacy and confidentiality are still values in medicine.

Hard Or Soft Pluralism?: Positive, Normative, And Institutional Considerations Of States’ Extraterritorial Powers, Mark D. Rosen

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This article is an invited commentary to an extremely thought-provoking address delivered by Richard H. Fallon, Jr., that addressed unexpected consequences that would follow a reversal of Roe v. Wade. The article addresses the question of states’ extraterritorial powers, and asks whether Mary, a citizen of a state that prohibited abortions (let’s say Utah), could be barred from obtaining abortions in a state (let’s say California) in which abortions were legal.

The Article makes seven points in relation to this question. Its observations are relevant not only to the unlikely event of Roe’s demise, but also to a non-trivial class …

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For "New And Compelling Evidence", David S. Rudstein

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No abstract provided.

After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham

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In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.

Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen

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Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …

Was Shelley V. Kraemer Incorrectly Decided? Some New Answers (Winner Of The 2006 Outstanding Scholarly Paper Award From The Association Of American Law Schools), Mark D. Rosen

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Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley's attribution rationale, a contract's substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause.

Shelley's attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, …

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

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The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: "Societies that trade liberty for security end often with neither." Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism - including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government's actions in fighting terrorism. The thesis throughout …

Assuming Responsibility: Thomas F. Eagleton, The Senate And The Bombing Of Cambodia, Joel K. Goldstein

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The past has a way of repeating itself. Events may not reoccur in the precise manner previously experienced; yet, the pattern often is sufficiently familiar to resemble one encountered before. For those who experienced the Vietnam years, the war in Iraq carries some feeling of “déjà vu all over again.”[1] There are differences, to be sure, yet a familiar pattern emerges—a failed discretionary war on foreign shores, executive use of manipulated intelligence to build support, the parade of shifting rationales offered to replace those exposed as unconvincing, the presidential deceit and dissembling, the legislative abdication.

Thomas F. Eagleton spent the …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

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The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

How To Think About Voter Fraud (And Why), Chad Flanders

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In recent months, debates over voter fraud have consumed state legislatures and blogs, courts and election commissions. The prevailing way of framing that debate has been in terms of numbers and statistics: how much voter fraud is there, and does the amount of voter fraud justify new measures to prevent it? In my essay, I argue for a shift away from statistical analysis and towards normative discourse. Only if we understand why (and whether) voter fraud is bad will we be able to decisively settle debates about what should be done about it, if anything.

The first part of my …

Reply Of Professor Rudovsky To Professor Stephen I. Vladeck, "The Field Theory: Martial Law, The Suspension Power, And The Insurrection Act, David Rudovsky

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No abstract provided.

Litigating Civil Rights Cases To Reform Racially Biased Criminal Justice Practices, David Rudovsky

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No abstract provided.

Originalism And Its Discontents (Plus A Thought Or Two About Abortion), Mitchell N. Berman

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No abstract provided.

The Independent Significance Of The Press Clause Under Existing Law, C. Edwin Baker

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The paper argues that only the assumption that the Press Clause has a meaning independent of the Speech Clause could explain either different First Amendment treatment of individuals and the press or different First Amendment treatment of the press and other businesses. Suggesting an interpretation of the Press Clause as protecting the institutional integrity of the Fourth Estate, it then examines fifteen areas of law and finds that in each area the press receives different treatment – precisely the different treatment that the Fourth Estate theory predicts. Moreover, no area of law is found to be inconsistent with this independent …

Striving For Equality, But Settling For The Status Quo: Is Title Vi More Illusory Than Real?, Ruqaiijah Yearby

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A plethora of empirical studies, such as the Institute of Medicine’s Unequal Treatment report, have shown that racial inequities in health care continue at the same level as in the Jim Crow Era. Innumerable reasons have been offered to explain the continuation of these health inequities, including racial discrimination. Congress enacted Title VI of the Civil Rights Act of 1964 to put an end to racial discrimination in health care, but it still persists. Given the regulation and enforcement mechanisms established under Title VI explicitly aimed at remedying racial discrimination such as that directed at elderly African-Americans it is unbelievable …

Foreword, Joel K. Goldstein

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Thomas F. Eagleton was an original. Many found him to be one of the most compelling and admirable people they had ever encountered. That was certainly my experience as I came to know him during the last few years of his life. And he certainly made a strong, favorable impression on the students we taught together at Saint Louis University School of Law in our seminar on the Presidency and the Constitution.

The Uneasy Entente Between Legal Insanity And Mens Rea: Beyond Clark V. Arizona, Stephen J. Morse, Morris B. Hoffman

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There is uneasy tension in the criminal law between the doctrines of mens rea and the defense of legal insanity. Last term, the Supreme Court addressed both these issues, but failed to clarify the relation between them. Using a wide range of interdisciplinary materials, this article discusses the broad doctrinal, theoretical, and normative issues concerning responsibility that arise in this context. We clarify the meaning of mental disorder, mens rea and legal insanity, the justification for and the relation between the latter two, and the relation among all three. Next we consider the reasoning in Clark, and for the most …

A Retroactivity Retrospective, With Thoughts For The Future: What The Supreme Court Learned From Paul Mishkin, And What It Might, Kermit Roosevelt Iii

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No abstract provided.

Chief Justice Rehnquist's Appointments To The Fisa Court: An Empirical Perspective, Theodore Ruger

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No abstract provided.