Law Commons^™

Comment On Brewer: Form And Content In Legal Proof (Or Why Everybody Wins - Or At Least Gets A Participation Trophy), Gary S. Lawson

Faculty Scholarship

In 1980, I was in a Contracts class taught by the incomparable Arthur Leff. It became very clear very quickly that one student in that class was (apart from Professor Leff) the smartest and most interesting person in the room. That person was Scott Brewer. More than three and a half decades later, when I thought about who I would most like to invite to comment on my book Evidence of the Law: Proving Legal Claims, one name immediately shot into my mind: Scott Brewer. He was, as the saying goes, at the very top of my draft board. He …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson

Faculty Scholarship

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When …

Take The Fifth... Please!: The Original Insignificance Of The Fifth Amendment's Due Process Of Law Clause, Gary S. Lawson

Faculty Scholarship

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process …

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …

Qualitative Diversity: Affirmative Action's New Reframe, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Prophylactic Fifth Amendment, Tracey Maclin

Faculty Scholarship

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Faculty Scholarship

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …

Review Of David Cole. Engines Of Liberty: The Power Of Citizen Activists To Make Constitutional Law., Pat Newcombe

Faculty Scholarship

In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, David Cole presents a fascinating perspective on constitutional law by recounting three engaging stories of enormous constitutional change and of the organizations and individuals, whose efforts achieved such change. Cole’s accounts are well supported with citations to documents and personal interviews, all written in an accessible, engaging, and clear style. The Author highly recommends this first-rate work to law, general academic, and public libraries.

Obergefell, Fisher, And The Inversion Of Tiers, Maxwell Stearns

Faculty Scholarship

In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. In oral argument in Fisher v. University of Texas, the Court signaled its growing discomfort with the Grutter v. Bollinger strict scrutiny doctrine, which affords a level of institutional deference in tension with narrow tailoring and least restrictive means. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve de facto applications of strict …

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

The Future Of State Sovereignty, Joseph Raz

Faculty Scholarship

Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will …

Holier Than You And Me: 'Religious Liberty' Is The New Bully Pulpit And Its Meaning Is Endangering Our Way Of Life, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an …

Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

Generation Gaps And Ties That Bind: Constitutional Commitments And The Framers' Bequest Of Unamendable Provisions, George Mader

Faculty Scholarship

“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?

The subject of this Article, in general, is the relationship between “We the People,” …

Legal Language: Expansion, Consolidation, Resistance, Robert L. Tsai

Faculty Scholarship

Legal language in America, a species of the political discourse of popular sovereignty, underwent significant changes during the nineteenth century. Beyond dramatic changes in the technologies of language, two major sociolegal dynamics of political development drove linguistic innovation during the nineteenth century: expansion and consolidation. Religious revivals and political reform movements, including a number of utopian projects, spread the language of liberty and popular consent as groups migrated west. The sensational 1829 pamphlet known as Walker's Appeal turned America's language of political liberty against the slave trade. David Walker, a former slave, directed his words primarily to the colored people …

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …

Fidelity To Our Imperfect Constitution: A Response To Five Views, James E. Fleming

Faculty Scholarship

En mi libro reciente, Fidelity to Our Imperfect Constitution, adelanto una crí-tica sostenida al originalismo en todas sus formas y defiendo tanto lo que Ronald Dworkin llamó una “lectura moral” de la Constitución de los Estados Unidos de América como lo que, junto a Sotirios A. Barber, he llamado una “aproximación filosófica” a la interpretación constitucional. En este ensayo para el Simposio sobre el libro, respondo a cinco comentarios muy pensa-dos. Primero, en contra del comentario de Sot Barber, justifico el responder a la “resurgencia persistente del originalismo” y el tratar de “salvar al ori-ginalismo nuevo de sí mismo” al …

Doing Gloss, Curtis A. Bradley

Faculty Scholarship

It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …

Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen

Faculty Scholarship

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring mechanism …

Originalism Without Text, Stephen E. Sachs

Faculty Scholarship

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

Family Reunification And The Security State, Kerry Abrams

Faculty Scholarship

No abstract provided.

What Is Foreign Relations Law?, Curtis A. Bradley

Faculty Scholarship

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …

Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao

Faculty Scholarship

No abstract provided.