Law Commons^™

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

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

Faculty Scholarship

No abstract provided.

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

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. …

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

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

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

Faculty Scholarship

No abstract provided.

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

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

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

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

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 …

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

Faculty Scholarship

No abstract provided.

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 …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Faculty Scholarship

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …

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 …

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger

Faculty Scholarship

It has been the best of times and the worst of times for internal separation of powers. Over the past few years, internal checks on executive power have been a central topic of legal academic debate – rarely have details of public administrative structure received so much attention. To some extent, this sudden popularity reflects growing interest in questions of institutional design. Unfortunately, however, another reason for this attention is the prominent erosion and impotence of such internal constraints under the recent administration of President George W. Bush.

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 …

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

Cruel And Unequal Punishment, Nita A. Farahany

Faculty Scholarship

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …

Heller’S Problematic Second Amendment Categoricalism, Joseph Blocher

Faculty Scholarship

No abstract provided.

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Scholarship

This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …