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Full-Text Articles in Law

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French Jan 2022

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 …


Federalism And The Limits Of Subnational Political Heterogeneity, James A. Gardner Nov 2021

Federalism And The Limits Of Subnational Political Heterogeneity, James A. Gardner

Journal Articles

With an epidemic of democratic backsliding now afflicting many of the world’s democracies, including the United States, some scholars have suggested that federalism might serve as a useful defense for liberal democracy by impeding the ability of an authoritarian central government to stamp it out at the subnational level. In this Essay, I dispute that contention. An examination of both federal theory on one hand and the behavior and tactics of central control employed by ancient and early modern empires on the other leads to the conclusion that the protective value of federalism against the effects of national authoritarianism is …


The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner Nov 2021

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …


Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero Jan 2021

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 …


Moral Truth And Constitutional Conservatism, Gerard V. Bradley Jan 2021

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …


Lessons From A Journey Through State Subnational Constitutional Law, James A. Gardner Jun 2020

Lessons From A Journey Through State Subnational Constitutional Law, James A. Gardner

Journal Articles

No abstract provided.


Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai Mar 2020

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Journal Articles

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake …


The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen Jan 2020

The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen

Journal Articles

How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have …


Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller Jan 2020

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …


Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford Jan 2020

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system.1 The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, 2 examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system.3 To date, most scholarship evaluating youth prosecution has focused on our country’s …


Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee Jan 2020

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 Jan 2020

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 Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten Sep 2019

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.


The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen May 2019

The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen

Journal Articles

No abstract provided.


Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor Apr 2019

Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor

Journal Articles

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far …


Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein Apr 2019

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Journal Articles

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …


Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn Jan 2019

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …


Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens Jan 2019

Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Journal Articles

The 100th anniversary of the 19th Amendment to the United States Constitution is an appropriate moment to reflect on the history—and consider the future—of the right to vote in the United States. High school and college classes teach the nation’s suffrage story as integral to our identity, focusing on the enfranchisement of women under the 19th Amendment and African Americans pursuant to the 15th Amendment.1 Constitutional law courses also present the 15th Amendment as foundational knowledge for the legal profession.2 Critical legal theory and women’s legal history texts frequently cover the 19th Amendment as central to understanding the first wave …


Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae Quinn, Grace R. Mclaughlin Jan 2019

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae Quinn, Grace R. Mclaughlin

Journal Articles

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …


The Constitutionalization Of Fatherhood, Dara Purvis Jan 2019

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 Jan 2019

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 …


The Theory And Practice Of Contestatory Federalism, James A. Gardner Dec 2018

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …


Special Justifications, Randy J. Kozel Oct 2018

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …


The Security Court, Matthew J. Steilen Sep 2018

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …


Active Judicial Governance, James A. Gardner Sep 2018

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.


Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg Jul 2018

Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the …


How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen May 2018

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as …


Secret Law, Jonathan Manes Apr 2018

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond …


Bringing Brown V. Board Of Education Out Of Retirement, Angela Mae Kupenda Jan 2018

Bringing Brown V. Board Of Education Out Of Retirement, Angela Mae Kupenda

Journal Articles

The decision in the landmark U.S. Supreme Court case Brown v. Board of Education, turns 65 years old in 2019. While 65 is considered to be a normal retirement age, Brown was retired many years ago while it was still just a toddler. As a result, Brown never became all that it could be. Now as Brown turns 65, it is (past) time to bring Brown out of its early, premature retirement. The primary purpose of this commentary is to encourage other professors to think, too, on what we can do individually, and what we must do collectively, to reinvigorate …


Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee Jan 2018

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Journal Articles

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic …