Law Commons^™

The Resilience Of Property, Lynda L. Butler

Faculty Publications

Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms …

The Dog Days Of Fourth Amendment Jurisprudence, Kit Kinports

NULR Online

No abstract provided.

The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments, Jeff Vandam

NULR Online

No abstract provided.

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …

Chief Justice Roberts's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian

NULR Online

No abstract provided.

Abortion Access In An Era Of Constitutional Infidelity, Khiara Bridges

Faculty Scholarship

Abner Greene’s Against Obligation and Louis Michael Seidman’s On Constitutional Disobedience offer provocative, subversive, and frequently convincing arguments against wholesale fidelity to the Constitution. Greene makes the case that individuals, at times, have no duty to obey the Constitution as it has been interpreted and articulates a methodology for how the government should accommodate these legitimate acts of disobedience. Seidman, however, makes the case that we should abandon the “pernicious myth” that we are obligated to obey the Constitution at all. He argues that if the fiction of constitutional obedience was jettisoned altogether, the national discourse about the issues that …

Property's Constitution, James Y. Stern

Faculty Publications

Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do …

Immigration, Sovereignty, And The Constitution Of Foreignness, Matthew Lindsay

All Faculty Scholarship

It is a central premise of modern American immigration law that immigrants, by virtue of their non-citizenship, are properly subject to an extra-constitutional regulatory authority that is inherent in national sovereignty and buffered against judicial review. The Supreme Court first posited this constitutionally exceptional authority, which is commonly known as the “plenary power doctrine,” in the 1889 Chinese Exclusion Case. There, the Court reconstructed the federal immigration power from a form of commercial regulation rooted in Congress’s commerce power, to an instrument of national self-defense against invading hordes of economically and racially degraded foreigners.

Today, generations after the United States …

Abstention, Separation Of Powers, And Recasting The Meaning Of Judicial Restraint, William P. Marshall

Faculty Publications

No abstract provided.

The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall

Faculty Publications

No abstract provided.

The Sixth Amendment Rights To Fairness: The Touchstones Of Effectiveness And Pragmatism, Robert P. Mosteller

Faculty Publications

No abstract provided.

A Monist Supremacy Clause And A Dualistic Supreme Court: The Status Of Treaty Law As U.S. Law, D. A. Jeremy Telman

Law Faculty Publications

Hans Kelsen identified three possible relationships between the international and domestic legal orders. Dualism understands the international and domestic legal orders as separate and independent. Monism describes a single and comprehensive legal order but can operate with either domestic law or international law as a higher order law. Like many domestic legal orders, that of the United States has never fully worked out which of these three options specifies the status of international law in its domestic legal order. While the text of the United States Constitution suggests a form of monism in which international law is automatically part of …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

All Faculty Scholarship

Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Faculty Publications

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Akron Law Faculty Publications

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Back To The Future Of Abortion Regulation In The First Term, Tracy A. Thomas

Akron Law Faculty Publications

Abortion and women's reproductive rights have reemerged as front-page news. As popular culture grapples with election rhetoric, states continue to engage in aggressive anti-abortion regulation of first-term abortions. In the first half of 2011, more abortion bills have passed to restrict abortion than ever before. The 162 new abortion bills passed by 19 states in the first six months of the year dwarf the average number of abortion bills for the last three decades of 15 per year. Even more, these bills propose significantly more stringent limits on abortion than in the past, including mandatory ultrasound viewings, intensive counseling, and …

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Akron Law Faculty Publications

No abstract provided.

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Faculty Scholarship

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

Constitutional Constraints On Retroactive Civil Legislation: The Hollow Promises Of The Federal Constitution And Unrealized Potential Of State Constitutions, Jeffrey Omar Usman

Law Faculty Scholarship

Within American society, there is a general sense that changing the rules after the game has been played is unfair. While state legislatures more often enact prospective legislation, they nevertheless still regularly engage in retroactive civil lawmaking. In essence, state legislatures are changing the rules after the game has been played. Most Americans inaccurately assume such measures are unconstitutional under the federal constitution. Although several provisions of the United States Constitution offer potential sources of constitutional constraint upon retroactive civil lawmaking, ultimately, as they have been interpreted by the United States Supreme Court, these protections are extremely narrow, largely hollow, …

Black Armbands, 'Boobies' Bracelets And The Need To Protect Student Speech, David L. Hudson Jr.

Law Faculty Scholarship

Discusses the precedential value of the Tinker v. Des Moines Independent School District decision in the current Boobies Bracelets debate.

Should Public Buildings Be Used For Worship, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

What Is The Meaning Of Like: The First Amendment Implications Of Social-Media Expression, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Everywhere the Internet goes, new legal problems are sure to follow. As social media expands and infiltrates our daily lives, society must grapple with how to extend the law to modern situations. This problem becomes increasingly pressing as more and more of our social interactions take place online. For example, Facebook has become a colossal gathering place for friends, families, co-workers, frenemies, and others to disseminate their ideas and share information. Sometimes Facebook replaces old institutions; other times it augments them. Where once a neighbor would show allegiance to a political candidate by staking a sign on the front lawn, …

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

Scholarly Works

In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

The Secret "Kill List" And The President, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

In Defense Of Scholars' Briefs: A Response To Richard Fallon, Amanda Frost

Articles in Law Reviews & Other Academic Journals

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now.

This response begins by describing the benefits of scholars’ briefs …

Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.

The Canadian Legal System, Steve Coughlan, Dale Darling

Articles, Book Chapters, & Popular Press

To really understand the influence of law on any activity, one must first understand the influences on the creation of law. This chapter sets the context for that discussion of law, by explaining the structural aspects of the legal system. Those aspects include the sources of law in Canada, the forms that law can take, and the parties who are primarily responsible for creating and shaping the law. This chapter will be structured around the discussion of four things: constitutional law, non-constitutional law, decision-makers in the legal system and, finally, a case study illustrating those features in action.

Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel

All Faculty Publications

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …