Law Commons^™

State Law Holocaust-Era Art Claims And Federal Executive Power, Jennifer Anglim Kreder

NULR Online

No abstract provided.

Can Popular Constitutionalism Survive The Tea Party Movement?, Jared A. Goldstein

NULR Online

The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics. More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution. Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.

The Tea Party, The Constitution, And The Repeal Amendment, Randy Barnett

NULR Online

No abstract provided.

If We Have An Imperfect Constitution, Should We Settle For Remarkably Timid Reform? Reflections Generated By The General Phenomenon Of “Tea Party Constitutionalism” And Randy Barnett’S Particular Proposal For A “Repeal Amendment”, Sanford Levinson

NULR Online

There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains. As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward the national government. Thus at least two candidates for the 2010 Republican nomination for the Texas governorship (including the ultimately successful incumbent, Rick Perry) endorsed or at least flirted with nineteenth century ideas of “nullification” and even secession as a …

The Constitutional Politics Of The Tea Party Movement, Richard Albert

NULR Online

The Tea Party movement and its constitutional vision for the United States is perhaps the hottest topic in American public law today. The rising tide of popular support for the Tea Party movement has transformed what was once cast aside as a fleeting faction into a formidable force in American politics—one that could augur significant consequences for the contours of American constitutional law in the years ahead.

Scribble Scrabble, The Second Amendment, And Historical Guideposts: A Short Reply To Lawrence Rosenthal And Joyce Lee Malcolm, Patrick J. Charles

NULR Online

In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This Article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions. He inaccurately claims that the founders left insufficient historical evidence to support such prohibitions. Thus this Article addresses those concerns through the use of “historical guideposts.” The second aspect this Article sets forth to address …

So How Did We Get Into This Mess? Observations On The Legitimacy Of Citizens United, Alexander Polikoff

NULR Online

How did the American body politic allow business corporations to threaten members of Congress by saying, credibly, “Do what we want or we’ll bury you!”?

On January 21, 2010, the Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission interpreted the U.S. Constitution’s First Amendment to permit corporations to spend unlimited amounts of money to support or oppose their chosen candidates. "[A] lobbyist," said the front page of the next day’s New York Times, "can now tell any elected official that [if you vote wrong,] my company, labor union or interest group will spend unlimited sums explicitly …

Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander

Faculty Working Papers

Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid …

The Oberlin Fugitive Slave Rescue: A Victory For The Higher Law, Steven Lubet

Faculty Working Papers

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book -- Fugitive Justice: Runaways, Rescuers, and Slavery on Trial -- which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and …

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

Why Jack Balkin Is Disgusting, Andrew Koppelman

Faculty Working Papers

Yale Law Professor Jack Balkin didn't win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn't possibly defend the paradigmatic departure from the Constitution's original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly …

Bad News For Mail Robbers: The Obvious Constitutionality Of Health Care Reform, Andrew Koppelman

Faculty Working Papers

Two federal district judges have invalidated the so-called "individual mandate" in the Patient Protection and Affordable Care Act of 2010. Their reasoning is bizarre and mischievous. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the framers, and cripple the nation's ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

Doma, Romer, And Rationality, Andrew Koppelman

Faculty Working Papers

It has been objected by many that the Defense of Marriage Act lacks a rational basis because it reflects a bare desire to harm a politically unpopular group. The increasing success of the argument, which has persuaded three federal judges, reveals the hidden normative premises of rational basis analysis, at least whenever that analysis is used to invalidate a statute. Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country's attitudes toward gay people have evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. …

Partisan Conflicts Over Presidential Authority, Jide Okechuku Nzelibe

Faculty Working Papers

A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at …