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Full-Text Articles in Law
Counterfeit Campaign Speech, Rebecca Green
Counterfeit Campaign Speech, Rebecca Green
Faculty Publications
We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no …
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Faculty Publications
Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …
Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins
Faculty Publications
No abstract provided.
The Horne Dilemma: Protecting Property's Richness And Frontiers, Lynda L. Butler
The Horne Dilemma: Protecting Property's Richness And Frontiers, Lynda L. Butler
Faculty Publications
In a 2015 decision, the Supreme Court concluded that real and personal property should not be treated differently under the Takings Clause and that a government condition requiring raisin growers, in certain years, to reserve a percentage of their crop for the government to manage in noncompetitive venues was a per se physical taking. The decision to treat both real and personal property as equally worthy of protection under the Takings Clause has merit given the weak historical evidence suggesting stronger protection for land and the importance of personal property to income generation and capital development in a modern society. …
The Post-Riley Search Warrant: Search Protocols And Particularity In Cell Phone Searches, Adam M. Gershowitz
The Post-Riley Search Warrant: Search Protocols And Particularity In Cell Phone Searches, Adam M. Gershowitz
Faculty Publications
Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches …
Salvaging "Safe Spaces": Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner
Salvaging "Safe Spaces": Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner
Faculty Publications
No abstract provided.
Do Laws Have A Constitutional Shelf Life?, Allison Orr Larsen
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 …
Professional Rights Speech, Timothy Zick
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 …
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Faculty Publications
No abstract provided.
Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman
Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman
Faculty Publications
No abstract provided.
Standing Outside Article Iii, Tara Leigh Grove
Standing Outside Article Iii, Tara Leigh Grove
Faculty Publications
The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
Faculty Publications
Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
Faculty Publications
No abstract provided.
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Faculty Publications
Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
Faculty Publications
Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …
Remarks Of William Van Alstyne On The Brandenburg Panel, William W. Van Alstyne
Remarks Of William Van Alstyne On The Brandenburg Panel, William W. Van Alstyne
Faculty Publications
No abstract provided.
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
Faculty Publications
No abstract provided.
Erie’S Suppressed Premise, Michael S. Green
Erie’S Suppressed Premise, Michael S. Green
Faculty Publications
No abstract provided.
Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick
Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick
Faculty Publications
No abstract provided.
The Peculiar Federal Marriage Amendment, Scott Dodson
The Peculiar Federal Marriage Amendment, Scott Dodson
Faculty Publications
In this essay, I discuss the Constitution's commitment to three themes - state power over familial matters, individual liberty, and equality - and then demonstrate how the proposed Federal Marriage Amendment is uniquely contrary to all three. I do not intend to go so far as to suggest that the FMA would be an unconstitutional amendment, if such things are possible, nor do I mean to suggest that same-sex marriage is or should be affirmatively protected by the Constitution. I mean only to suggest that proposed amendments altering the Constitution's commitment to multiple existing themes in the Constitution should be …
Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl
Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt
Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt
Faculty Publications
No abstract provided.
The Constitution Outside The Courts, Michael J. Gerhardt
The Constitution Outside The Courts, Michael J. Gerhardt
Faculty Publications
No abstract provided.
The Idea Of The Constitution As Hard Law, William W. Van Alstyne
The Idea Of The Constitution As Hard Law, William W. Van Alstyne
Faculty Publications
No abstract provided.
Notes On A Bicentennial Constitution: Part Ii, Antinomial Choices And The Role Of The Supreme Court, William W. Van Alstyne
Notes On A Bicentennial Constitution: Part Ii, Antinomial Choices And The Role Of The Supreme Court, William W. Van Alstyne
Faculty Publications
Continuing the examination of judicial review conducted around the Constitution’s bicentennial, this article lays bare the inconsistencies in the expected tasks of the Supreme Court. Where some roles of the Court have traditionally been treated as indivisible, examining those same roles separate from one another produces an incoherent view of the Court that is difficult to compromise.
The Limited Constitutional Convention—The Recurring Answer, William W. Van Alstyne
The Limited Constitutional Convention—The Recurring Answer, William W. Van Alstyne
Faculty Publications
No abstract provided.
The Proposed Twenty-Seventh Amendment: A Brief, Supportive Comment, William W. Van Alstyne
The Proposed Twenty-Seventh Amendment: A Brief, Supportive Comment, William W. Van Alstyne
Faculty Publications
No abstract provided.
Does Article V Restrict The States To Calling Unlimited Conventions Only? - A Letter To A Colleague, William W. Van Alstyne
Does Article V Restrict The States To Calling Unlimited Conventions Only? - A Letter To A Colleague, William W. Van Alstyne
Faculty Publications
From time to time, various state legislatures have adopted resolutions designed to require Congress to call a limited convention in which one or another possible amendments to the Constitution might be proposed. In 1967, thirty-two states, two short of the requisite two-thirds filed such resolutions requesting a convention for the purpose of considering an amendment to "overrule" the Supreme Court's principal reapportionment decisions. In 1971, Senator Ervin of North Carolina introduced a bill to provide guidelines to be followed upon a state call for a convention. This year, approximately twenty-eight states have adopted some kind of resolution for the purpose …
A Critical Guide To Ex Parte Mccardle, William W. Van Alstyne
A Critical Guide To Ex Parte Mccardle, William W. Van Alstyne
Faculty Publications
Given the growing trend of proposed Congressional bills seeking to remove certain types of cases from the Supreme Court's appellate jurisdiction, this examination looks back on Ex Parte McCardle, the quintessential case that defined the limits of the Exceptions Clause.
The Supreme Court, The President And Congress, William F. Swindler
The Supreme Court, The President And Congress, William F. Swindler
Faculty Publications
No abstract provided.