Law Commons^™

The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried

Michigan Law Review

A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.

The People Against The Constitution, Aziz Z. Huq

Michigan Law Review

A review of Jan-Werner Müller, What Is Populism?.

A New Deal For Europe? The Commerce Clause As The Solution To Tax Discrimination And Double Taxation In The European Union, Charles Edward Andrew Lincoln Iv

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle

ConLawNOW

The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of judicial …

Remedies Symposium: Reexamining Bivens After Ziglar V. Abbasi, Bernard W. Bell

ConLawNOW

In Ziglar v. Abbasi, the U.S. Supreme Court revisited Bivens doctrine, suggesting that courts recognize constitutional tort actions only in cases closely analogous to one of the cases comprising the 1970s/1980s era Bivens trilogy, namely Bivens v. Six Unknown Named Agents, Davis v. Passman, and Carlson v. Green. In doing so the Court set forth several factors that might make a case distinguishable from those 1970s/1980s cases. This essay argues that the key to Ziglar v. Abbasi is not the analogical exercise the Court imposed, but the Court’s concern that Bivens actions could become a mechanism for …

Remedies Symposium: Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

ConLawNOW

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …

Issue 3: Table Of Contents

University of Richmond Law Review

No abstract provided.

Acknowledgments, Andrew E. Hemby

University of Richmond Law Review

No abstract provided.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Searching For Cliven Bundy: The Constitution And Public Lands, Ian Bartrum

Nevada Law Journal Forum

On April 5th, 2014, BLM temporarily closed over 500,000 acres of public land in Clark and Lincoln Counties in order to impound cattle grazing there in violation of a federal district court order. These cattle belonged, principally, to Cliven Bundy and his family—ranchers from Bunkerville, Nevada—who had stopped paying BLM permitting fees in the early 1990s. In anticipation of the roundup, the Bundys put out a distress call to militia-like groups around the country, and seven days later, an armed crowd confronted federal and state officers in the desert near Gold Butte. Another week later, federal authorities backed down, citing …

“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan

Maine Law Review

On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States— not just visitors from abroad, but American citizens as well. This astonishing proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency. In this Article, I attempt to address President Trump’ s proposal in several ways. First, I aim to provide a thorough analysis demonstrating unequivocally that such a “ Muslim registry,” with the characteristics President Trump has endorsed, would violate …

Newsroom: Interrogation Expert Warns Against Use Of Torture 2-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

Brief Of Tax Law Professors As Amici Curiae In Support Of Petitioner, Edward A. Zelinsky

Amicus Briefs

Amici are professors of tax law at universities across the United States. As scholars and teachers, they have considered the doctrinal roots and practical consequences of judicial limits on state and local taxation. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in the Appendix to this brief.

Teaching The Forgotten Fourteenth Amendment And The Constitution Of Memory, Mark A. Graber

Saint Louis University Law Journal

No abstract provided.

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

How The United States Supreme Court Diminished Constitutional Protections Of The Right To Vote And What Congress Can Do About It, Henry Rose

Faculty Publications & Other Works

No abstract provided.

Constitutional Law: Protecting Our Youth: A Necessary Limit On The First Amendment—State V. Muccio, Richard A. Podvin

Mitchell Hamline Law Review

No abstract provided.