Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Constitutional Law

2020

Constitutional law

Articles 1 - 30 of 44

Full-Text Articles in Law

Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng Dec 2020

Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng

Research Collection Yong Pung How School Of Law

This paper proposes to study constitutional and administrative law in Singapore through the lenses of Atiyah’s and Summers’ concepts of form and substance in order to discern fruitful avenues for the development of Singapore constitutional and administrative law. While the concepts of form and substance in the context of constitutional law are often associated with constitutional interpretation, they can also be fruitfully applied to other areas of constitutional and administrative law to shed light on the potential trajectories of Singapore law. The intent of this paper is to apply Atiyah’s and Summers’ concepts of form and substance to Singapore constitutional …


The Executive Branch Anticanon, Deborah Pearlstein Nov 2020

The Executive Branch Anticanon, Deborah Pearlstein

Faculty Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …


Pursuing Diversity: From Education To Employment, Amy L. Wax Oct 2020

Pursuing Diversity: From Education To Employment, Amy L. Wax

All Faculty Scholarship

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …


Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus Oct 2020

Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus

Book Chapters

This chapter discusses how Lin Manuel Miranda's Hamilton: An American Musical is changing the future of originalism. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, but because readings of Founding era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton's cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative has retold America's …


Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller Sep 2020

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


Correlation And Constitutional Rights, Laura K. Donohue Aug 2020

Correlation And Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Skepticism among American scholars about the value of analytic legal positivism stems in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s framework and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law in particular, demonstrating the weaknesses in assuming that the private law model can be sustained without …


Five Takeaways From High Court's Term, John M. Greabe Aug 2020

Five Takeaways From High Court's Term, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last month, the Supreme Court wrapped up it 2019-2020 term with a flurry of significant rulings.

The court confirmed that Congress and state attorneys general may subpoena third parties for evidence when legitimately investigating a sitting president; held that the executive branch must engage in reasoned decision-making when rescinding administrative protections for a vulnerable population (i.e., beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program); and defined the scope of the president's power to remove officials from high office.

The court also clarified that federal anti-discrimination employment protections extend to LGBTQ workers; held that states may punish members …


Marshaling Mcculloch, Richard A. Primus Aug 2020

Marshaling Mcculloch, Richard A. Primus

Reviews

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.


Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns Jul 2020

Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns

Seattle University Law Review Online

No abstract provided.


Judicial Review And Governmental Bad Faith, John M. Greabe Jun 2020

Judicial Review And Governmental Bad Faith, John M. Greabe

Law Faculty Scholarship

[Excerpt] This column is the third and final installment of a series considering some potential implications of June Medical Services v. Russo, a case involving a constitutional challenge to a Louisiana law regulating access to abortion services. The United States Supreme Court heard arguments in the case on March 4. A decision is expected shortly.

The first column sought to place June Medical Services in context by describing the history of constitutional abortion-rights litigation at the Supreme Court. The second explained what the case is likely to tell us about the respect the court will show to prior constitutional …


Covid-19 And American Democracy, Barry Sullivan Jun 2020

Covid-19 And American Democracy, Barry Sullivan

Faculty Publications & Other Works

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.


Judicial Precedent In Emerging Constitutional Jurisdictions: Formulating A Doctrine Of Constitutional Stare Decisis For Singapore, Kenny Chng Jun 2020

Judicial Precedent In Emerging Constitutional Jurisdictions: Formulating A Doctrine Of Constitutional Stare Decisis For Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

Judicial precedents in constitutional law raiseunique stare decisis considerations. While they are authoritative pronouncementson the proper interpretation of the Constitution and are thus an essentialcomponent of constitutional law, they are also merely judicial precedents – andthus susceptible to being overturned. These considerations have been thesubject of a well-developed body of literature, especially in the context of USSupreme Court constitutional precedents.Yet, despite being a constitutional supremacy, little attention has beenpaid in Singapore to the question of the proper judicial approach towardsconstitutional precedents. This paper aims to address this issue. It will discernthe de facto principles that Singapore judges have thus far …


Response Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein May 2020

Response Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein

Faculty Testimony

Letter sent to Congressman Jim McGovern, Chair of the House Rules Committee. This letter has been entered into the Congressional Record.

"I read with interest an article by Mssrs. Mark Strand and Tim Lang introduced into the record during yesterday’s hearing of the House Rules Committee on H. Res. 965 - Authorizing remote voting by proxy in the House of Representatives. Having written elsewhere in detail about my conviction that the rules change under consideration readily passes constitutional muster, I am grateful for the opportunity to explain why the Strand and Lang position fails to persuade."


The New Maternity, Courtney Megan Cahill May 2020

The New Maternity, Courtney Megan Cahill

Scholarly Publications

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers.

Constitutional law's …


The Supreme Court And Constitutional Stare Decisis, John M. Greabe Apr 2020

The Supreme Court And Constitutional Stare Decisis, John M. Greabe

Law Faculty Scholarship

[Excerpt] This column is the second in a series of three considering some potential implications of June Medical Services v. Russo, a case involving a constitutional challenge to a Louisiana law regulating access to abortion services. The United States Supreme Court heard arguments in the case on March 4, 2020. A decision is expected by the end of June. More on the case below.


Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein Apr 2020

Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein

Faculty Testimony

Letter written to Congressman Jim McGovern, Chair of the House Rules Committee. This letter has been entered into the Congressional Record.

As a professor of constitutional law, and a scholar who has written extensively on separation of powers issues in U.S. Government, I believe adopting procedures to allow for remote voting under these extraordinary circumstances is not only lawful, but essential to the maintenance of our constitutional democracy. Recognizing that specific procedures for remote voting may still be in development, the analysis offered here focuses foremost on the broad scope of Congress’ constitutional authority to regulate its voting procedures.


Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason Mar 2020

Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations of …


App Permissions And The Third-Party Doctrine, Michael Gentithes Jan 2020

App Permissions And The Third-Party Doctrine, Michael Gentithes

Con Law Center Articles and Publications

Apple’s trademarked catchphrase “there’s an app for that”1 suggests that every app on a modern digital device is perfectly tailored to provide a specific, necessary convenience. Whether the user wants to check the weather, get updates on her favorite baseball team, find a coupon for her next purchase, or track her fitness and activity levels, she can use an app to fill gaps in her life that she may not have known existed. What the user might also not know, however, is that “permissions” either she or the phone’s operating system have granted to the app allow it to access …


Book Review, Strange Bedfellows: Marriage In The Age Of Women's Liberation, Tracy Thomas Jan 2020

Book Review, Strange Bedfellows: Marriage In The Age Of Women's Liberation, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.


Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry Jan 2020

Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry

Faculty Publications & Other Works

No abstract provided.


State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone Jan 2020

State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone

Faculty Publications & Other Works

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 42 U.S.C. § 14141 to authorize the U.S. Attorney General to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (DOJ) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year and the Trump Administration has recently announced it would no longer enforce § 14141.

In response, a …


The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson Jan 2020

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …


Furtive Blackness: On Blackness And Being, T. Anansi Wilson Jan 2020

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …


Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey Jan 2020

Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey

Elisabeth Haub School of Law Faculty Publications

The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …


Misplaced Constitutional Rights, Brandon L. Garrett Jan 2020

Misplaced Constitutional Rights, Brandon L. Garrett

Faculty Scholarship

Constitutional rulings risk an unnoticed type of mission creep: misplacement through adoption in settings that they were not designed to regulate. This Article describes how in a set of important areas—and sometimes despite the Supreme Court’s explicit cautionary language—constitutional rules have taken hold outside of the settings that they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights and standards are often context limited to particular government actors, procedural settings, or remedies. Based on the text of the Constitution or precedent, some rights apply only during civil cases, while others apply only during criminal cases; …


Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr. Jan 2020

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making …


Disuniformity Of Federal Constitutional Rights, Joseph Blocher Jan 2020

Disuniformity Of Federal Constitutional Rights, Joseph Blocher

Faculty Scholarship

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.

Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not …


Reconceptualizing Hybrid Rights, Dan T. Coenen Jan 2020

Reconceptualizing Hybrid Rights, Dan T. Coenen

Scholarly Works

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and …


Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell Jan 2020

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …


Prejudice-Based Rights In Criminal Procedure, Justin Murray Jan 2020

Prejudice-Based Rights In Criminal Procedure, Justin Murray

Articles & Chapters

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice- based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element of these …