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Articles 331 - 360 of 491
Full-Text Articles in Law
Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick
Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick
Faculty Publications
No abstract provided.
Territoriality And The First Amendment: Free Speech At - And Beyond - Our Borders, Timothy Zick
Territoriality And The First Amendment: Free Speech At - And Beyond - Our Borders, Timothy Zick
Faculty Publications
No abstract provided.
How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins
Faculty Publications
No abstract provided.
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Journal Articles
May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …
Making Social Rights Conditional: Lessons From India, Madhav Khosla
Making Social Rights Conditional: Lessons From India, Madhav Khosla
Faculty Scholarship
Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This …
Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert
Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert
Articles
Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …
Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill
Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill
Faculty Scholarship
We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between "originalists" and "nonoriginalists". In the statutory arena, we have a three-way battle between "textualists," "intentionalists", and "pragmatists." A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the Practice of interpretation. Real world interpreters – to a person – deploy a variety of interpretative methods when they seek to resolve …
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Faculty Publications
This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the …
Originalism And Summary Judgment, Brian T. Fitzpatrick
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 …
Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin
Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin
Articles
No abstract provided.
The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg
The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg
Elisabeth Haub School of Law Faculty Publications
The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum …
Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman
Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction …
Judging Cruelty, Meghan J. Ryan
Judging Cruelty, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …
The Dignity Of Voters—A Dissent, James A. Gardner
The Dignity Of Voters—A Dissent, James A. Gardner
Journal Articles
Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one’s vote “cancelled out” by fraud or error in the casting and …
A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli
Faculty Scholarship
In classical social movement theory, scholars have identified the advocates of change as elements of agitation and the establishment as the entity that responds in an attempt to control the agitators. This classical approach has assumed that the establishment is a generally monolithic entity that responds in a unified manner to the efforts of the advocates of change. While this approach may accurately characterize some rhetorical situations, it does not necessarily have to characterize all such situations. For example, one could describe the judiciary as a part of the establishment because judges are well-connected and powerful individuals who, in many …
The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, Won Kidane
The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, Won Kidane
Faculty Articles
The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence …
Justice Stevens And The Seattle Schools Case: A Case Study On The Role Of Righteous Anger In Constitutional Discourse, Andrew Siegel
Justice Stevens And The Seattle Schools Case: A Case Study On The Role Of Righteous Anger In Constitutional Discourse, Andrew Siegel
Faculty Articles
No abstract provided.
Ivan Rand's Ancient Constitutionalism, Jonathon Penney
Ivan Rand's Ancient Constitutionalism, Jonathon Penney
Articles, Book Chapters, & Popular Press
Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Articles, Book Chapters, & Popular Press
The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …
Ivan Rand's Ancient Constitutionalism, Jonathon Penney
Ivan Rand's Ancient Constitutionalism, Jonathon Penney
Articles, Book Chapters, & Popular Press
Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …
Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa
Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa
Journal Articles
In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when …
Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope, James A. Gardner
Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope, James A. Gardner
Journal Articles
Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And …
Partial Unconstitutionality, Kevin C. Walsh
Partial Unconstitutionality, Kevin C. Walsh
Scholarly Articles
Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …
Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N'Cobra) And Its Antecedents, Adjoa A. Aiyetoro, Adrienne D. Davis
Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N'Cobra) And Its Antecedents, Adjoa A. Aiyetoro, Adrienne D. Davis
Faculty Scholarship
Most of the legal scholarship on reparations for Blacks in America focuses on its legal or political viability. This literature has considered both procedural obstacles, such as statutes of limitations and sovereign immunity, as well as the substantive conception of a defensible cause of action. Indeed, Congressman John Conyers introduced H.R. 40, a bill to study reparations, in 1989 and every Congressional session since, and there have been three law suits that have received national attention. This Essay takes a different approach, considering reparations as a social movement with a rich and under-explored history. As Robin Kelley explains, such an …
Placing Your Faith In The Constitution, Harold H. Bruff
Placing Your Faith In The Constitution, Harold H. Bruff
Publications
No abstract provided.
Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks
Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks
Publications
This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …
Shining A Light On Democracy's Dark Lagoon, Helen Norton
Shining A Light On Democracy's Dark Lagoon, Helen Norton
Publications
Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices. The Fourth Circuit, in …
Historic Signs, Commercial Speech, And The Limits Of Preservation, Stephen R. Miller
Historic Signs, Commercial Speech, And The Limits Of Preservation, Stephen R. Miller
Articles
No abstract provided.
The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi
The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi
Scholarly Articles
On December 4, 2009, Baltimore, Maryland enacted the nation's first law regulating the speech of individuals and groups who want to talk to pregnant women about whether to have an abortion. Less than two months later, nearby Montgomery County, Maryland enacted the second. These regulations only apply to speakers who want to talk about one particular subject: pregnancy. As a practical matter, the regulations only apply to speakers who oppose abortion. Counselors who work for organizations willing to provide abortions are entirely exempt. Immediately after these laws passed, abortion providers and their allies across the country began plans to pursue …
Of Squares And Uncouth Twenty-Eight-Sided Figures: Reflections On Gomilion And Lighfoot After Half A Century, Jonathan L. Entin
Of Squares And Uncouth Twenty-Eight-Sided Figures: Reflections On Gomilion And Lighfoot After Half A Century, Jonathan L. Entin
Faculty Publications
This essay, part of a symposium on political powerlessness and constitutional interpretation, focuses on Gomillion v. Lightfoot, which rejected an attempt to remove virtually every African American registered voter from the city limits of Tuskegee, Alabama. The paper examines why and how the case arose in a community with an unusually large and independent black middle class that had long placed high priority on voting rights as well as the impact of the ruling not only on political life in Tuskegee but also on the ruling in Baker v. Carr that launched the reapportionment of legislative bodies around the nation. …