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The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson Nov 2009

The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson

Faculty Scholarship

The Constitution creates very few federal offices. It creates the House and Senate,1 the Speaker of the House2 and the President pro tempore of the Senate,3 the President,4 the Vice President,5 and the Supreme Court6--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission7 and who Congress may impeach and remove,8 but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power9 and the Vice President's modest voting …


When Students Speak Away From School How Much Does The First Amendment Hear?, Leora Harpaz Apr 2009

When Students Speak Away From School How Much Does The First Amendment Hear?, Leora Harpaz

Faculty Scholarship

Controversies arising over the extent of the First Amendment speech rights of public school students while at school are resolved by an analysis of the familiar quartet of major decisions of the United States Supreme Court: Tinker, Fraser, Kuhlmeier, and Morse. While these decisions have not removed all uncertainty over the scope of student speech rights, they at least have divided these cases into distinct categories and identified the standard to be applied within each category. The wide range of judicial views on the issue of when student off-campus speech can be the basis of discipline by school authorities makes …


New Groups And Old Doctrine: Rethiking Congressional Power To Enforce The Equal Protection Clause, William D. Araiza Apr 2009

New Groups And Old Doctrine: Rethiking Congressional Power To Enforce The Equal Protection Clause, William D. Araiza

Faculty Scholarship

No abstract provided.


The Constitution's Congress, Gary S. Lawson Apr 2009

The Constitution's Congress, Gary S. Lawson

Faculty Scholarship

In order to know whether Congress is (as the title of this panel wonders)1 "the broken branch,"'2 one needs a baseline describing how a normallyfunctioning Congress would look.3 Congress is a creation of the Constitution, and so the Constitution seems to be the obvious place to look for this baseline: what sort of people does the Constitution expect to serve in Congress and how does it expect those people to behave once they arrive?


Toward A More Democratic Congress?, James E. Fleming Apr 2009

Toward A More Democratic Congress?, James E. Fleming

Faculty Scholarship

There is considerable talk of failure in the air these days - including constitutional failure, moral failure, political failure and institutional failure - and criticisms of Congress figure prominently in this discourse. First, I shall ask whether talk about Congress being "the broken branch," the topic of the first panel in this symposium, is talk of constitutional failure or failure of some other sort. Second, to link the topic of that panel to the topic of the panel in which I participated, I will ask whether some call Congress the broken branch because it is not adequately or appropriately democratic. …


Constitutional Rules And Institutional Roles: The Fate Of The Equal Protection Class Of One And What It Means For Congressional Power To Enforce Constitutional Rights, William Araiza Jan 2009

Constitutional Rules And Institutional Roles: The Fate Of The Equal Protection Class Of One And What It Means For Congressional Power To Enforce Constitutional Rights, William Araiza

Faculty Scholarship

No abstract provided.


Symposium: Defining Race: Colorblind Diversity: The Changing Significance Of "Race" In The Post-Bakke Era, Bridgette Baldwin Jan 2009

Symposium: Defining Race: Colorblind Diversity: The Changing Significance Of "Race" In The Post-Bakke Era, Bridgette Baldwin

Faculty Scholarship

In 1954, fifty-eight years after the Plessy v. Ferguson decision, the Supreme Court was afforded another opportunity to reverse the “separate but equal doctrine” in Brown v. Board of Education of Topeka (Brown I). Brown I was a consolidation of five civil rights cases from the District of Columbia, Delaware, Kansas, Virginia, and South Carolina that attempted to change race relations in America by affording African Americans a piece of the pie. A few other cases soon followed Brown I. In 1963, Goss v. Board of Education of Knoxville proclaimed that any program that structurally appeared to maintain segregation would …


Condemning Religion: Rluipa And The Politics Of Eminent Domain, Nelson Tebbe, Christopher Serkin Jan 2009

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Nelson Tebbe, Christopher Serkin

Faculty Scholarship

No abstract provided.


Dr. King And The Battle For Hearts And Minds, Wendy B. Scott Jan 2009

Dr. King And The Battle For Hearts And Minds, Wendy B. Scott

Faculty Scholarship

In 1954, a unanimous Supreme Court held that laws requiring dual public school systems, separated solely on the basis of race, violated the rights afforded to African American children under the Fourteenth Amendment Equal Protection and Due Process clauses. Brown v. Board of Education marked the beginning of a judicial assault on what the Court in Loving v. Virginia called statutory schemes and state court decisions that served as “an endorsement of the doctrine of White Supremacy.” Both Chief Justice Earl Warren and Dr. King recognized that the practice of White Supremacy did more than keep people separated. In Brown, …


Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen Jan 2009

Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen

Faculty Scholarship

The Slaughter-House Cases have a bad reputation for good reason. Justice Miller’s narrow reading of the Privileges or Immunities Clause was used to prevent the federal government from adequately protecting African-Americans after the Civil War. Further, his opinion for the Court significantly delayed the application of the Bill of Rights to the states. But no one knows whether the world would be better with a different decision, because counter-factuals are never certain. The case did not involve either racial discrimination or incorporation, and total condemnation of the opinion for weakening civil rights misses its context and misreads its design. This …


Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber Jan 2009

Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber

Faculty Scholarship

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. “[R]elying on the present Constitution.” he writes, “is similar to driving a car with very bad brakes and slick tires.” Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, decisions to drive a comparatively unsafe car are often …


The Universal Declaration And South African Constitutional Law: A Response To Justice Arthur Chaskalson, Peter E. Quint Jan 2009

The Universal Declaration And South African Constitutional Law: A Response To Justice Arthur Chaskalson, Peter E. Quint

Faculty Scholarship

No abstract provided.


Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray Jan 2009

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

Faculty Scholarship

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.


Brief For Amicus Curiae David A. Super: Supporting Plaintiff-Appellants Urging Reversal, In Howard V. Hawkins (2009)., David A. Super Jan 2009

Brief For Amicus Curiae David A. Super: Supporting Plaintiff-Appellants Urging Reversal, In Howard V. Hawkins (2009)., David A. Super

Faculty Scholarship

The Supreme Court has consistently held that congressional intent governs whether federal statutes are privately enforceable. Where Congress has been silent, a line of cases culminating in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), prescribes a formula for inferring congressional intent from the structure of a statute. Here, however, Congress has not been silent: the Food and Nutrition Act specifies the amount of retroactive benefits that may be awarded households in “any judicial action arising under this Act” and makes certain records of state agencies “available for review in any action filed by a household to enforce any provision …


60 Years Of The Basic Law And Its Interpretation: An American Perspective, Peter E. Quint Jan 2009

60 Years Of The Basic Law And Its Interpretation: An American Perspective, Peter E. Quint

Faculty Scholarship

In commemoration of the 60th anniversary of the adoption of the German Basic Law (Constitution) , the author discusses certain aspects of the Basic Law, in comparison with the Constitution of the United States, and examines important developments in the jurisprudence if the German Constitutional Court interpreting the Basic Law.


Foreword: Our Paradoxical Religion Clauses, Mark A. Graber Jan 2009

Foreword: Our Paradoxical Religion Clauses, Mark A. Graber

Faculty Scholarship

No abstract provided.


Judicial Diversity, Sherrilyn A. Ifill Jan 2009

Judicial Diversity, Sherrilyn A. Ifill

Faculty Scholarship

No abstract provided.


Constitutional Necessity And Presidential Prerogative: Does Presidential Discretion Undergird Or Undermine The Constitution?, Michael P. Van Alstine Jan 2009

Constitutional Necessity And Presidential Prerogative: Does Presidential Discretion Undergird Or Undermine The Constitution?, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.


Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher Jan 2009

Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher

Faculty Scholarship

The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend …


‘The Federalist’ Abroad In The World, Donald L. Horowitz Jan 2009

‘The Federalist’ Abroad In The World, Donald L. Horowitz

Faculty Scholarship

This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …


Presidential Popular Constitutionalism, Jedediah Purdy Jan 2009

Presidential Popular Constitutionalism, Jedediah Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …


Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov Jan 2009

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov

Faculty Scholarship

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …


Can We Talk? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro Jan 2009

Can We Talk? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Faculty Scholarship

No abstract provided.


Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan Jan 2009

Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan

Faculty Scholarship

This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …


Pregnancy And Sex-Role Stereotyping: From ‘Struck’ To ‘Carhart’, Neil S. Siegel, Reva B. Siegel Jan 2009

Pregnancy And Sex-Role Stereotyping: From ‘Struck’ To ‘Carhart’, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …


Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler Jan 2009

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …


The Shrunken Power Of The Purse, Alan L. Feld Jan 2009

The Shrunken Power Of The Purse, Alan L. Feld

Faculty Scholarship

The Constitution places control of the federal government's funds in the hands of Congress. This article examines Congress' exercise of discretion in connection with expenditures, impoundments, debt and taxation. It concludes that its actual control over the government's funds has become limited over time and makes recommendations for more robust exercise of its traditional authority.


Unshackling Speech (Book Review), David L. Lange Jan 2009

Unshackling Speech (Book Review), David L. Lange

Faculty Scholarship

Reviewing, Brian C. Anderson and Adam D. Thierer, A Manifesto for Media Freedom (2008))


The Constitutional Legitimacy Of Freestanding Federalism, Gillian E. Metzger Jan 2009

The Constitutional Legitimacy Of Freestanding Federalism, Gillian E. Metzger

Faculty Scholarship

Responding to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv.. L. Rev. 2003 (2009).


The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon Jan 2009

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …