Law Commons^™

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

This article confronts and challenges an emerging scholarly consensus that criticizes the hybridization of substantive and structural arguments in the litigation over the Patient Protection and Affordable Care Act (ACA). Although there is no doubt that the ACA plaintiffs have requested and the ACA judges have provided a hybrid substantive-structural holding, there is nothing at all unusual about this indirect strategy for protecting constitutional liberty interests; it is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review.” The article considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review, and concludes that …

Book Review Of Current Issues In Constitutional Litigation: A Context And Practice Casebook (Carolina Academic Press 2011), Christy Whitfield

Sarah E. Ricks

This is a book review of Current Issues in Constitutional Litigation: A Context & Practice Casebook (Carolina Academic Press 2011). My perspective is unique because I have worked with and watched this casebook evolve – I was assigned an early draft of the casebook as a law school student taking a constitutional litigation course, I worked as a research assistant on a later version of the casebook, and now, several years later, I have viewed the final result of the casebook as a practicing attorney. As a former law clerk and now as an attorney advisor in the beginning years …

The Geography Of Sexuality, Yishai Blank, Issi Rosen-Zvi

Yishai Blank

Who regulates sexuality in America? Given the high salience of federal laws and policies such as the Defense of Marriage Act (DOMA) and the military’s “Don’t Ask Don’t Tell” policy, and states’ legal activism regarding same-sex marriage, it would seem that sexuality is mostly a federal and a state matter, and that cities play a secondary, if not insignificant role. This Article argues that in fact the opposite is true: the regulation of sexuality has been decentralized, with cities being the main locus where the most important issues pertaining to the lives of gays and lesbians are decided. This “localization …

The New Gender Essentialism, Kimberly A. Yuracko

Kimberly Yuracko

In the 19th and early 20th Century women were often excluded from jobs and opportunities because of their sex. Sex, it was thought, defined individuals’ abilities and interests in ways that rendered women fit for certain tasks and unfit for many others. Fortunately, such sexual essentialism has been repudiated by courts. No longer, for example, may employers make assumptions about how women must or should behave because of their sex. Nonetheless, I contend that the sexual essentialism of the past is being replaced by a new form of gender essentialism whereby courts not only permit but in fact enforce dichotomous …

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime, Anthony E. Varona

Anthony E. Varona

A substantive foreword to the symposium book for the Fourteenth Annual Latino/Latina Critical Legal Theory Scholarship Conference hosted by the American University Washington College of Law. The foreword includes information about the conference theme, its planning and execution, and includes excerpts from the presentations of a number of prominent plenary and keynote speakers, including Congresswoman Linda Sanchez (D-CA), Caroline Fredrickson (the executive director of the American Constitution Society for Law and Policy), Robert Raben (the president of the Raben Group), Jarrett Barrios (the president of the Gay and Lesbian Alliance Against Defamation), Prof. Jenny Rivera (professor of law and director …

Teaching Social Justice Lawyering: Systematically Including Community Legal Education In Clinical Legal Education, Margaret Johnson, Catherine Klein, Margaret Barry, Lisa Martin, A. Camp

Margaret E Johnson

There is a body of literature on clinical legal theory that urges a focus in clinics beyond the single client to an explicit teaching of social justice lawyering. This Article adds to this emerging body of work by discussing the valuable role community legal education plays as a vehicle for teaching skills and values essential to single client representation and social justice lawyering. The Article examines the theoretical underpinnings of clinical legal education, community organizing and community education and how they influenced the authors’ design and implementation of community legal education within their clinics. It then discusses two projects designed …

"Not That Smart": Sonia Sotomayor And The Construction Of Merit, Guy-Uriel E. Charles Mr., Mitu G. Gulati Mr., Daniel L. Chen Dr.

Guy-Uriel E. Charles Mr.

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

Disentangling "Cohesiveness": The Misapplication Of § 2 In Vote Dilution Cases, Eliot Michael Held

Eliot Held

In Thornburg v. Gingles, the Supreme Court ruled that a state’s refusal to create a proposed majority-minority voting district could in some circumstances violate § 2 of the Voting Rights Act. A proponent of the proposed district must show that the minority population of the proposed district is “politically cohesive” and would constitute a majority of the proposed district’s voting-age population, and that the non-minority (Caucasian) population of the challenged district traditionally votes as a bloc such that it is usually able to elect a candidate not preferred by the minority population. This Article proposes that a proper reading of …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Dark Side Of The Creed: Stable Values And Constructed Meaning In American Thought, Joseph Margulies

Joseph Margulies

No abstract provided.

Plugging The School To Prison Pipeline By Addressing Cultural Racism In Public Education Discipline, Patrick Metze

Patrick Metze

As timely as today’s headlines, I take a critical look at the failure of the public schools to educate our children by criminalizing and alienating students of color and of economic disadvantage, forcing them out of the schools and into the juvenile justice system as the first step to a life of reduced expectations and productivity. We are failing to prevent these children from becoming disengaged from society and its institutions that were designed for their benefit – the institution of a free public education. It is time we frankly acknowledge that our long stored history of racial conflict has …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World.

From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …