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Articles 1 - 10 of 10
Full-Text Articles in Law
The Great And Mighty Tax Law: How The Roberts Court Has Reduced Constitutional Scrutiny Of Taxes And Tax Expenditures, Linda Sugin
The Great And Mighty Tax Law: How The Roberts Court Has Reduced Constitutional Scrutiny Of Taxes And Tax Expenditures, Linda Sugin
Faculty Scholarship
This article compares National Federation of Independent Business v. Sebelius – the Supreme Court’s decision upholding the individual mandate in Obamacare as a tax, with Arizona Christian Schools v. Winn – the Supreme Court’s decision denying standing to taxpayers with an Establishment Clause challenge to a state tax credit. It argues that these cases aggravate a growing tension between the economic and legal analyses of taxation by reducing the legal significance of economic analysis in constitutional cases. It suggests that Arizona Christian Schools was a truly radical decision because it conceptualized tax expenditures as private action immune from constitutional attack, …
Federalism And The Eighth Amendment, Youngjae Lee
Federalism And The Eighth Amendment, Youngjae Lee
Faculty Scholarship
How many “cruel and unusual punishments” clauses are there? Michael Mannheimer, in his article, Cruel and Unusual Federal Punishments, argues that there are two—one for the federal government and one for state governments.1 Mannheimer contends that courts have been unduly neglecting the former and mistakenly applying the latter to the federal government without adequate reflection.2 Mannheimer further argues that the Eighth Amendment is primarily a device to promote state sovereignty and that we should accordingly read it as requiring that federal punishments be no more severe than state punishments for equivalent crimes.3 I cannot do justice in this brief Response …
The Regulation Of Race In Science, Kimani Paul-Emile
The Regulation Of Race In Science, Kimani Paul-Emile
Faculty Scholarship
The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene
Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene
Faculty Scholarship
What makes religion distinctive, and how does answering that question help us answer questions regarding religious freedom in a liberal democracy? In their books on religion in the United States under our Constitution, Andrew Koppelman (DefendingAmerican Religious Neutrality) and Brian Leiter (Why Tolerate Religion?) offer sharply different answers to this set of questions. This review essay first explores why we might treat religion distinctively, suggesting that in our constitutional order, it makes sense to focus on theism (or any roughly similar analogue) as the hallmark of religious belief and practice. Neither Koppelman nor Leiter focuses on this, in part because …
Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau
Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau
Faculty Scholarship
The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
Faculty Scholarship
This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.
Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green
Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green
Faculty Scholarship
In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the …
What Is Constitutional Obligation?, Abner S. Greene
What Is Constitutional Obligation?, Abner S. Greene
Faculty Scholarship
Mike Seidman’s book, On Constitutional Disobedience, offers an impressive challenge to constitutional fidelity. With much of it, my book Against Obligation is on all fours – we both share the view that our Constitution’s meaning should not be bound by past sources. Seidman seems to go further, though, and reject the bindingness of the Constitution as a text. What does it mean to ask whether the Constitution itself obligates? Most of the Constitution doesn’t set rules for citizens; rather, it establishes powers, and what we might consider conditional obligations, for officials. All government officials in the United States swear an …
Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson
Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson
Faculty Scholarship
The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …