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Supreme Court of the United States

Constitution

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Full-Text Articles in Law

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law Mar 2021

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Re-Reading Chevron, Thomas W. Merrill Jan 2021

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.


An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo Dec 2020

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt ...


Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber Mar 2020

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber

Law Faculty Briefs and Court Documents

The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it ...


Rucho Is Right – But For The Wrong Reasons, Louis Michael Seidman Jan 2020

Rucho Is Right – But For The Wrong Reasons, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In Rucho v. Common Cause, the Supreme Court ended its long struggle to formulate constitutional standards to regulate political gerrymandering by declaring that it was not up to the job. The Court held that it could come up with no manageable standards governing the controversy and that it therefore posed a nonjusticiable political question.

In this brief comment, I attempt defend this outcome. The task is not easy, and I hope that the reader will at least give me some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil and there is ...


Neglecting Nationalism, Gil Seinfeld May 2019

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely ...


The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke Jan 2019

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20th century when this concept transitioned from an economic and property rights based approach to one ...


Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas Jun 2018

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post ...


The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias Mar 2018

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more ...


Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark Jan 2018

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the ...


Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law Jan 2018

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore Jun 2017

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the ...


The Disparate Impact Canon, Michael T. Morley Jan 2017

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.


The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux Jan 2017

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Articles

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases ...


Three Supreme Court “Failures” And A Story Of Supreme Court Success, Corinna Barrett Lain Jan 2016

Three Supreme Court “Failures” And A Story Of Supreme Court Success, Corinna Barrett Lain

Law Faculty Publications

Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures—cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases—Plessy and Buck—the ...


Newsroom: Nason '05 Cited By U.S. Supreme Court, Roger Williams University School Of Law Jun 2015

Newsroom: Nason '05 Cited By U.S. Supreme Court, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Reverse Nullification And Executive Discretion, Michael T. Morley May 2015

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption ...


Reflections On Comity In The Law Of American Federalism, Gil Seinfeld Apr 2015

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on ...


The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman Jan 2015

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.


The Limits Of Enumeration, Richard A. Primus Dec 2014

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police ...


The Puzzling Presumption Of Reviewability, Nicholas Bagley Mar 2014

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but was commonly ...


Enacted Legislative Findings And The Deference Problem, Daniel A. Crane Mar 2014

Enacted Legislative Findings And The Deference Problem, Daniel A. Crane

Articles

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness ...


The Jurisprudence Of Union, Gil Seinfeld Jan 2014

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by ...


Election Law's Lochnerian Turn, Ellen D. Katz Jan 2014

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.


Understanding The Establishment Clause: A Revisit, Robert A. Sedler Jan 2013

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus Jan 2012

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the ...


A Separation Of Powers Defense Of Federal Rulemaking Power, Michael Blasie Mar 2011

A Separation Of Powers Defense Of Federal Rulemaking Power, Michael Blasie

Faculty Scholarly Works

Judicial rulemaking—the methods by which federal courts create federal procedural rules—represents a paradigmatic clash between the functionalist and formalist theories of the separation of powers. There exist compelling practical reasons to invest such power in the judiciary, yet the Constitution’s text does not explicitly confer such power on any branch. This Article comprehensively examines the separation of powers issues raised by the current federal rulemaking process under the formalist theory of the separation of powers in light of modern precedent. Part I details the current procedure for creating the federal rules, summarizes the relevant scholarship, and examines ...


The Four Pillars Of Constitutional Doctrine, Suzanna Sherry Jan 2011

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme ...


Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld Jan 2010

Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld

Articles

Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that ...


The Functions Of Ethical Originalism, Richard A. Primus Jan 2010

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing ...