Law Commons^™

Extremely Broad Laws, Kiel Brennan-Marquez

Faculty Articles and Papers

Extremely broad laws offend due process. Although the problem has not been lost on courts, their solution to date has been haphazard: casting breadth as a species of uncertainty-ambiguity or vagueness-and repurposing uncertainty-focused doctrine accordingly. The trouble is, breadth and uncertainty are not the same. They have different analytic features and raise distinct concerns, making the tools designed to resolve uncertainty ill-suited to reining in breadth. Vague and ambiguous laws deprive people of notice about what the law requires. They evoke the Star Chamber and Kafka stories-the dread of inhabiting an incomprehensible legal order. With broad laws, the issue is …

Updating The Constitution: Amending, Tinkering, Interpreting, Richard Kay

Faculty Articles and Papers

The U.S. Constitution is now 230 years old, and it is showing its age. Its text, taken in the sense that its enactors understood it, is, unsurprisingly, inadequate to the needs of a large, populous twenty-first century nation. The Constitution creates a government that is carefully insulated from the democratic preferences of the population. It fails to vest the central government with the tools needed to manage and regulate a vast, complicated, and interrelated society and economy. On the other hand, it guarantees its citizens protection of only a limited set of human rights. Notwithstanding these blatant defects, the means …

Interpreting Constitutional Provisions In Tandem, Kiel Brennan-Marquez

Faculty Articles and Papers

No abstract provided.

Formal And Informal Amendment Of The United States Constitution, Richard Kay

Faculty Articles and Papers

No abstract provided.

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Faculty Articles and Papers

In recent years, the literature of constitutional originalism has adopted a new concept, "constitutional construction." This Essay critically examines that concept. Contrary to some claims, the difference between "interpretation" and "construction" is not well established in common law adjudication. Contemporary descriptions of constitutional construction end up leaving some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is unavoidable because the constitutional text is inherently incomplete. It fails to provide a decision-rule for manyindeed for most-constitutional disputes. This conclusion follows, howeveronly when the Constitution is interpreted according to the "new" or "public …

Of Milk And The Constitution, Mathilde Cohen

Faculty Articles and Papers

Central cases in our constitutional law canon share an unexpected similarity: they all arose out of litigation involving cattle and milk. The Slaughter-House Cases, Nebbia v. New York, Carolene Products, and Wickard v. Filburn are familiar to generations of law students as iconic cases that address key concepts such as equal protection, the states' police powers, and Congress' commerce powers. Importantly, they also ground the Supreme Court's "dairy jurisprudence "-the series of cases about milk and cattle decided between the 1880s and the early 2000s. This Article argues that this dairy jurisprudence expresses an underlying ideology of nutrition, which glorifies …

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger

Faculty Articles and Papers

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

Two Ways To Rewrite The Constitution, Richard Kay

Faculty Articles and Papers

The proposition that the Constitution needs to be rewritten begs a critical question-namely what the Constitution is. If we posit that by Constitution we mean the rules drafted by the Philadelphia Convention of 1787 as amended in accordance with Article V of those rules, the argument that many of those rules are out of date and need to be replaced is a powerful one. This inadequacy appears in the powers they grant, the powers they do not grant, some of the limitations they impose on public decisions, and some limitations they ought to impose but do not. No matter how …

The Jury And Participatory Democracy, Alexandra Lahav

Faculty Articles and Papers

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Faculty Articles and Papers

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect — that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing …

Public Debt In The United States And Germany: A Constitutional Perspective, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Due Process And The Future Of Class Actions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

A Modest Defense Of Mind Reading, Kiel Brennan-Marquez

Faculty Articles and Papers

The last decade has witnessed a profusion of commentary on "mind-reading" devices. Instead of offering traditional legal arguments against such devices, most scholars have simply assumed their use to be unconstitutional. The consensus is clear: by essentially "speaking for" defendants, mind-reading devices offend the basic spirit of the Self-Incrimination Clause. In this Article, I defend the constitutionality of mind-reading on both doctrinal and normative grounds. First, I reconstruct the Court's self-incrimination jurisprudence to demonstrate that evidence is only "testimonial" and thus, privileged if it involves a "communicative act" from the suspect. Whether or not particular types of mind-reading devices would …

Rites Without Rights: A Tale Of Two Military Commissions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

Constituent Authority, Richard Kay

Faculty Articles and Papers

The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory have long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison …

Children's Constitutional Rights, Anne Dailey

Faculty Articles and Papers

This Article presents a developmental theory of children’s constitutional rights that focuses on the fundamental role of children’s rights in the socialization process leading to adult autonomy. The long history of denying children the full range of constitutional rights has its roots in a choice theory of rights that understands rights as deriving from the decision-making autonomy of the individual. From the perspective of choice theory, children do not enjoy most constitutional rights because they lack the capacity for autonomous choice. Choice theory not only justifies the long history of denying children rights, but it also serves to explain the …

Constitutional Courts As "Positive Legislators" In The United States, Richard Kay, Laurence P. Claus

Faculty Articles and Papers

This Report asks whether American courts that decide constitutional cases, and ultimately the Justices of the United States Supreme Court, may be characterized as legislators, and in particular, as "positive" legislators. After defining the terms, the report reviews the Supreme Court's practice of constitutional lawmaking and considers academic and political reactions to that practice. The Report concludes with an account of challenges that the Court has encountered in crafting remedies fit to fulfill the promise of its constitutional rulings.

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay

Faculty Articles and Papers

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the original public meaning of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …

Why Climate Law Must Be Federal: The Clash Between Commerce Clause Jurisprudence And State Greenhouse Gas Trading Systems, Joseph Macdougald

Faculty Articles and Papers

Absent Federal legislation or leadership on regulatory responses to greenhouse gas (“GHG”)-based climate problems, the states have sought, either on their own or through regional agreements, to restrict the amount of GHG released by the electric power plants within their states. These systems are subject to “leakage,” the ability of power providers to receive electricity from an “extra-regional” and hence unregulated source. While practical considerations may limit the immediate impact of leakage, in the long term, state-based systems perversely provide competitive advantages to unrestricted GHG-emitting power sources that do not have the burden of compliance. One logical avenue to address …

Post- Gideon Developments In Law And Lawyering, Timothy Everett

Faculty Articles and Papers

No abstract provided.

The Secession Reference And The Limits Of Law, Richard Kay

Faculty Articles and Papers

When the Supreme Court of Canada issued its judgment on the legality of unilateral Quebec secession in August 1998 many Canadians did not know what to make of it. The Court held that the only lawful way in which Quebec might depart the Canadian federation was through one of the amendment mechanisms provided in the Constitution Act 1982. It thus affirmed that Quebec could not secede without the agreement of at least the Houses of the federal Parliament and some number of provincial legislative assemblies. Prime Minister Chretien declared the next day that the judgement was a victory for all …

John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

Review, Inherent Rights, The Written Constitution, And Popular Sovereignty: The Founders' Understanding, Richard Kay

Faculty Articles and Papers

Reviewing Thomas B. McAffee, Inherent Rights, the Written Constitution, and Popular Sovereignty: The Founders' Understanding. Westport, Conn.: Greenwood Press, 2000

Constitutional Chrononomy, Richard Kay

Faculty Articles and Papers

Every constitution defines and is defined by a period in time. Like all law the creation and application of constitutions require reference to the past and future respectively Every instance of constitution-making is an attempt to control behavior over an extended period of time. Therefore constitutions will be drafted, both in style and substance, to reflect that temporal ambition. The effectiveness of a constitution also requires that its interpretation makes reference to the understanding of its rules held by the constitution-makers. As a result, and notwithstanding the efforts to make it suitable over a long period by its creators, every …

The Constitutionalization Of Law In The United States, Richard Kay, William B. Fisch

Faculty Articles and Papers

The United States may be the prime example of constitutionalization of the legal order. It was the first system (though no longer the only one) to make its written constitution directly applicable law, superior to all other sources of law, in all courts. A corollary to this legalization of the constitution is that the federal courts and a majority of state court systems will only entertain a constitutional claim in the context of a concrete dispute involving adversary parties with a specific stake in the outcome, and abstract review in these systems is unknown.

"Originalist" Values And Constitutional Interpretation, Richard Kay

Faculty Articles and Papers

No abstract provided.

On Conduits And Voices, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Lochner For Women: The Ideology Of Separate Spheres In Muller V. Oregon, Anne Dailey

Faculty Articles and Papers

No abstract provided.

Federalism And Families, Anne Dailey

Faculty Articles and Papers

No abstract provided.