Law Commons^™

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

The Right To Remain Armed, Jeffrey Bellin

Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

The Voting Rights Act, Questions Of Deference & Legislative Facts In A Digital Age, Allison Orr Larsen

Faculty Publications

AALS Constitutional Law Panel (January 5, 2015)

Do Laws Have A Constitutional Shelf Life?, Allison Orr Larsen

Faculty Publications

Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held that the coverage formula of the law grew to be irrational over time and was unconstitutional now because it bears “no logical relation to the present day.” This reason for invalidating a law is puzzling. The question answered in Shelby County was not about whether …

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Big Data Blacklisting, Margaret Hu

Faculty Publications

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …

Article Iii In The Political Branches, Tara Leigh Grove

Faculty Publications

In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …

Measuring Party Polarization In Congress: Lessons From Congressional Participation In Amicus Curiae, Neal Devins

Faculty Publications

First, I will detail the prevalence of party polarization and how party polarization has limited congressional interest in its institutional prerogatives vis-à-vis the executive. Second, I will discuss my research findings governing congressional amicus briefs. I will consider patterns in bipartisan filings over time (comparing the less polarized 1974–1985 Supreme Court terms with the more polarized 2002–2013 terms). I will also consider the types of issues lawmakers and their institutional counsel have pursued in their filings. This investigation will reveal a decline in briefs in institutional cases and an upswing in briefs on politically salient issues that divide the parties …

First Amendment Cosmopolitanism, Skepticism, And Democracy, Timothy Zick

Faculty Publications

This is a response to Professor Ronald J. Krotoszynski, Jr.’s review of my book, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, 2014). The response explains the basic principles of First Amendment cosmopolitanism and highlights the importance of the First Amendment’s transborder dimension. It also responds to skeptical and critical reactions to some of the book’s arguments. Finally, the response elaborates on First Amendment cosmopolitanism’s relationship to democratic values.

Law, Religious Change, And Samesex Marriage Posted On, Nathan B. Oman

Popular Media

No abstract provided.

The Empirical Irony Of The Conflict Between Antidiscrimination And Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys …

Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner

Faculty Publications

No abstract provided.

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer

Faculty Publications

No abstract provided.

Professional Rights Speech, Timothy Zick

Faculty Publications

Some regulations of professional-client communications raise important, but sofar largely overlooked, constitutional concerns. Three recent examples of professional speech regulation-restrictions on physician inquiries regarding firearms, "reparative" therapy bans, and compelled abortion disclosures-highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right--the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First …