Law Commons^™

Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky

David A Sklansky

No abstract provided.

A Constitutionalist Perspective, Elizabeth Dale

Elizabeth Dale

Intended as a sustained critique of modern communitarian thought written from a constitutionalist perspective, Beau Breslin'sCommunitarian Constitution is a handy primer on modern communitarian thought and a provoking consideration of the impact of communitarian thinking on contemporary politics. The foundation for Breslin's fundamental argument--that constitutionalism provides a viable alternative to communitarianism, while liberalism cannot--is not laid as well as one might wish. There are other points where his logic ought to be more rigorously developed, most notably in his assessment of the role and power of the rule of law in a constitutionalist system. He rests his reliance on the …

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of …

On Brown V. Board Of Education's 50th Anniversary: To Integrate Or Separate Is Not The Question

Thomas Kleven

By ending official apartheid, Brown represented a great victory in the struggle for racial justice in the United States. Following more than a decade of inaction as a result of its “all deliberate speed” formulation, and in response to the then prevailing sentiment among the proponents of Brown, the Supreme Court began to push for the integration of school districts that engaged in segregation by law or practice. This integrationist push lasted from the late 1960s to the late 1970s. Beginning in the mid-1970s the Court began to limit the remedies for segregation by law or practice, and beginning in …

On The Freedom To Associate Or Not To Associate With Others

Thomas Kleven

This article discusses the freedom to associate or not to associate with others. Associational issues are pervasive in the law, and arise on both an individual and a societal level. Within societies one party may want to have an association with another who doesn’t want the association, or parties may want to have an association that others find objectionable or may want not to have an association that others favor. In all of these situations society as a whole must decide whether to empower one party to impose an unwanted relationship on others, and whether to prohibit associations that parties …

Liberalism And Religion

Steven H. Shiffrin

No abstract provided.

Spandrel Or Frankenstein's Monster? The Vices And Virtues Of Retrofitting In American Law, Michael Dorf

Michael C. Dorf

No abstract provided.

The Natural Born Citizen Clause As Originally Understood, Mary Brigid Mcmanamon

Mary Brigid McManamon

Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there has been a candidate that “pushed the envelope” on this question in many elections over the last …

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand

Michael A Helfand

Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because …

The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman

Michael A Helfand

This Article addresses the rise of “co-religionist commerce” in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated.

Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if there are to be judicially enforced. However, religious goods and services often cannot be accurately translated without religious terms …

Fcc V. Fox Television Moot Court, Robert Barnes, Joan Biskupic, John Blume, Erwin Chemerinsky, Thomas Goldstein, Linda Greenhouse, John Mcginnis, David Savage, Paul Smith, William Van Alstyne, Timothy Zick

John H. Blume

The Bill of Rights Institute and William and Mary Law School hosted a moot court on the FCC v. Fox Television indecency case. The case rests on the FCC’s ban against the use of curse words in television broadcasts Erwin Chermerinsky and Thomas Goldstein argued the case before Joan Biskupic, Robert Barnes, John Blume, Linda Greenhouse, John McGinnis, David Savage, Paul Smith, William Van Alstyne, and Timothy Zick. After the oral argument the judgment was shown. Then the panelists responded to questions from members of the audience. This program contains language some may find offensive.

Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John Stinneford

John F. Stinneford

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self contradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. …

Constitutionality Of Statutory Renegotiation, Charles Collier

Charles W. Collier

No abstract provided.

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber

Mark Graber

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …

Hobby Lobby's Challenge To Officialdom's 'Compelling Interest', Michael Helfand

Michael A Helfand

No abstract provided.

The Murkiness Of The Hobby Lobby Ruling, Michael Helfand

Michael A Helfand

No abstract provided.

The Balanced Budget Amendment: Will Judges Become Accountants? A Look At State Experiences, Donald Tobin

Donald B. Tobin

No abstract provided.

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.

The …

America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Robert L Tsai

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion--the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines …

Implied Consent: A Proposal On For-Profit Conscience, Michael Helfand

Michael A Helfand

No abstract provided.

Original Jurisdiction Deadlocks, Michael Coenen

Michael Coenen

When a member of the Supreme Court is unable to hear a case, the remaining Justices will occasionally split 4-4 on the case's merits. Normally, such a tie vote translates into a summary affirmance of the lower court ruling, but it remains an open question how the Court should deal with deadlock in the original jurisdiction context, where by definition there is no lower court ruling to affirm. The Court has from its inception lacked a clear and principled approach to original jurisdiction deadlocks (OJDs), and as a result it has dealt awkwardly with those it has confronted in the …

The Fundamental Nature Of Title Vii, Maria Ontiveros

Maria L. Ontiveros

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title …

Constructing Constitutional Politics: The Reconstruction Strategy For Protecting Rights, Mark Graber

Mark Graber

No abstract provided.

Terry V.Ohio, Massiah V. United States, And Zurcher V. Stanford Daily, Robert Bloom

Robert Bloom

No abstract provided.

A New Introduction To American Constitutionalism, Mark Graber

Mark Graber

A New Introduction to American Constitutionalism is the first text to study the entirety of American constitutionalism, not just the traces that appear in Supreme Court decisions. Mark A. Graber both explores and offers original answers to such central questions as: What is a Constitution? What are fundamental constitutional purposes? How are constitutions interpreted? How is constitutional authority allocated? How do constitutions change? How is the Constitution of the United States influenced by international and comparative law? and, most important, How does the Constitution work? Relying on an historical/institutional perspective, the book illustrates how American constitutionalism is a distinct form …

New Legal Challenge To Guantanamo Confinement, Robert Sanger

Robert M. Sanger

We will discuss in this article a new Petition for Writ of Habeas Corpus filed in the federal court relating to the non-release of detainees held at Guantanamo Bay notwithstanding the order of the Administration for their release. As of this writing, the President of the United States has issued orders releasing at least 40 detainees, including Ahmed Adnan Ajam who is the subject of the new Petition. Ironically, under the National Defense Authorization Act for the Fiscal Years 2011-20131 (“NDAA”), the President is restricted from releasing detainees under the NDAA which was enacted as a partisan rider to defense …

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron

Charles H. Baron

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the …

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …