Law Commons^™

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

School of Law Faculty Publications and Presentations

No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This Essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution. Part I highlights certain features of the statute and explores the rationale underlying its enactment. Part II discusses the only published decision upholding the practice of taking of DNA samples from certain …

The Constitution And The American Federal System, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Former Presidents And Executive Privilege, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Constitution provides former Presidents with no powers or role, and yet numerous former Presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This article argues that notwithstanding Nixon v. Administrator of General Services, former Presidents should retain no …

Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Calabresi and Yoo make three important contributions to the literature on separation of powers in their new book. First, they seek to rescue the unitary executive theory from the Bush Administration lawyers who have discredited the theory in the eyes of many by relying on it to support outlandish claims of presidential power that are unrelated to the unitary executive theory. Second, they make a persuasive case for the unitary executive theory by explaining why a president must have the power to remove executive branch officers and to control policy making in the executive branch. Third, they document the ways …

Constitutional Borrowing, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

Berkemer Revisited: Uncovering The Middle Ground Between Miranda And The New Terry, Michael J. Roth

Fordham Law Review

Over the past twenty-five years, appellate courts have significantly expanded the scope of police authority to stop and frisk potential suspects without probable cause, a power originally granted to law enforcement by the Supreme Court in Terry v. Ohio. This development has led Terry’s once limited licensing of police searches to run into conflict with a defendant’s right against compulsory self-incrimination while in police custody, as articulated by Miranda v. Arizona. This Note explores the contours of this unforeseen collision between two core constitutional doctrines and the solutions generated by appellate courts to resolve the conflict. Courts today are generally …

Answering Justice Scalia's Question: Dual Sovereignty And The Sixth Amendment Right To Counsel After Texas V. Cobb And Montejo V. Louisiana, Ryan M. Yanovich

Fordham Law Review

Since the U.S. Supreme Court decided Texas v. Cobb in 2001, eight courts of appeals have rached divergent conclusions as to the scope and extent of a criminal defendant's Sixth Amendment right to counsel when he is being prosecuted by multiple sovereigns, including, most recently, the U.S. Court of appeals for the Eleventh Circuit in 2008. Invariably, each circuit court purports to draw conclusive support for its holding from the plain language of Cobb. The conflict among the circuits reveals a tension between the courts; desire to balance fundamental individual and legitimate state interests, achieve uniformity and consistency in the …

Toward A Duty-Based Theory Of Executive Power, David M. Driesen

Fordham Law Review

This article develops a duty-based theory of executive power. This theory maintains that the Constitution seeks to instill a duty in all executive branch officers to faithfully execute the law. Conversely, the Constitution’s Framers and Ratifiers did not intend to empower the President to distinctively shape the law to suit his policy preferences or those of his party. Rather, they envisioned a model of “disinterested leadership” serving rule-of-law values. Because of the Ratifiers’ and Framers’ interest in preventing abuse of executive power, the Constitution obligates executive branch officials to disobey illegal presidential directives and creates a major congressional role in …

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …

Preemption And Theories Of Federalism, Robert R. M. Verchick, Nina A. Mendelson

Book Chapters

American government is an experiment in redundancy, with powers and duties shared among federal, state, and local decision makers. The arrange­ment is designed to divide power, maximize self-rule, and foster innovation, but it also can breed confusion. In the areas of public safety and environ­mental protection, state and federal leaders (to name the two most active players in these disputes) are often seen jockeying for the inside track, hoping to secure the resources or authority needed to promote their views of the public good or gain politically. To outside observers, the best outcomes are not obvious. For example, should the …

Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri

Faculty Publications

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Privacy And The New Virtualism, Jonathon Penney

Articles, Book Chapters, & Popular Press

First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Presidential Popular Constitutionalism, Jedidiah Purdy

Fordham Law Review

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 ground-breaking 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 …

Reconciling Classified Evidence And A Petitioner's Right To A "Meaningful Review" At Guantanamo Bay: A Legislative Solution, Sarah Lorr

Fordham Law Review

In Boumediene v. Bush, the U.S. Supreme Court determined that the detainees held at Guantánamo Bay have a constitutional right to a writ of habeas corpus and are entitled to a “meaningful review” of their habeas petitions. This Note attempts to reconcile the need for a “meaningful review” with the government’s reliance on classified evidence that is completely inaccessible to the detainee-petitioners. After examining three other contexts in which the reliance on classified evidence has been sanctioned—federal criminal courts, immigration cases, and the ongoing military commissions at Guantánamo—this Note concludes that a “meaningful review” of the Guantánamo habeas petitions requires …

Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly

Akron Law Faculty Publications

From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected …

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis

Journal Articles

The article discusses the inclusion of the free exercise of religion among a society's constitutional guarantees in the U.S. It cites Christopher Eisgruber and Lawrence Sager, authors of the book "Religious Freedom and the Constitution," who hold that religion does not deserve constitutional mention on account of any special value. It disputes this view and states that religion does deserve constitutional mention and that the constitution should protect a citizen's right to practice his or her religion.

Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.

Law Faculty Publications

Much is made of how to interpret the Constitution. The Constitution is foundational and its law is the highest law in the land. Consequently, interpreting the Constitution correctly is important, not only so that the Constitution's words are honored but so that its ideals are honored. Similar desires accompany the interpretation of other important documents. Indeed, how a sacred text like the Bible is or can be interpreted may shed light upon how the Constitution could be or should be interpreted. This brief Essay considers how a particular vision of Christian biblical interpretation can inform constitutional interpretation. This Essay does …

Former Presidents And Executive Privilege, Laurent Sacharoff

Hofstra Law Faculty Scholarship

The Constitution provides former Presidents with no powers or role, and yet numerous former presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This Article argues that, notwithstanding Nixon v. Administrator of General Services (GSA), former Presidents should retain …

Rights, Remedies And Facial Challenges, Maya Manian

Scholarly Articles in Law Reviews & Journals

In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …

Separation Of Powers In Brazil, Keith S. Rosenn

Articles

No abstract provided.

Is The Constitution Libertarian?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the …

The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and …

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

Scholarly Works

In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …

Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson

Articles

The United States’s presidential transition period is too long. Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’” In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows. One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,” and another noted that “everyone . . . ignores the actions of the lame duck.”

Limits Of Interpretivism, Richard A. Primus

Articles

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.

Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman

University of Richmond Law Review

No abstract provided.