Law Commons^™

Constitutional Law: Cases, History, And Dialogues, 3rd Edition, William Araiza, Phoebe Haddon, Dorothy Roberts

Phoebe A. Haddon

One of this book's distinguishing features is its series of Dialogues in which the authors debate issues relevant to the cases. In the Dialogues the authors engage both each other and the cases, and in doing so reveal their own and the Justices' methodological, ideological, and policy assumptions. Students benefit from having this information as they form their own opinions about the doctrine. The Dialogues also provide a starting point for more insightful class discussions, by presenting the material in the context of the authors' viewpoints.

First Amendment Law: Cases, Comparative Perspectives, And Dialogues, Donald Lively, William Araiza, Phoebe Haddon, John Knechtle, Dorothy Roberts

Phoebe A. Haddon

No abstract provided.

A Constitutional Law Anthology, 2d Edition, Michael Glennon, Donald Lively, Phoebe Haddon, Dorothy Roberts, Russell Weaver

Phoebe A. Haddon

No abstract provided.

Aiming At The Wrong Target: The Audience Targeting Test For Personal Jurisdiction In Internet Defamation Cases, Sarah H. Ludington

Sarah H. Ludington

No abstract provided.

Pennsylvania Constitutional Conventions: Discarding The Myths, John Gedid

John L. Gedid

No abstract provided.

Voter Equality & Other Canadian Values: Finding The Right Balance, Sujit Choudhry, Matthew Mendelsohn

Sujit Choudhry

Representation by population (rep-by-pop) was one of the principal forces behind the creation of Canada and is a key pillar of democracy. The principle that all votes have equal weight reflects the democratic norm that all citizens should have an equal say in who will be elected, who will raise issues in Parliament and who will have the right to use the legitimate power of the state to make decisions on our behalf. Although some deviations from the norm of voter equality are acceptable, they should be grounded in principles that are widely accepted and viewed as legitimate. Canada’s federal …

Representative Self-Government And The Declaration Of Independence, Alexander Tsesis

Alexander Tsesis

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this article explains, the Declaration is relevant to legislative and judicial decisionmaking. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progeny, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress’s power under …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested engineered nanoparticles as a result of their contact with everyday consumer products. Nanoparticles are very small particles that are engineered using innovative technologies to be 1 to 100 nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers wide. Nanoscale materials are increasingly being used in a wide variety of areas, including electronic, magnetic, medical imaging, drug delivery, catalytic, materials applications, and cosmetic products. According to the National Institute of Occupational Health, new nanotechnology consumer products are coming …

The Bp Oil Spill: Marine Pollution, Admiralty Law And State Police Power Under The Oil Pollution Act Of 1990o, John J. Costonis

John J. Costonis

ABSTRACT

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the …

The Tea Party And The Constitution, Christopher W. Schmidt

Christopher W. Schmidt

This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A …

Beyond Judicial Activism: When The Supreme Court Is No Longer A Court, Margaret L. Moses

Margaret L. Moses

Our Supreme Court, in recent decisions, has reached out beyond the cases that were put before it by litigants to decide issues that were not in dispute between the parties. The four Supreme Court decisions discussed in this article, Citizens United v. FEC, Ashcroft v. Iqbal, Montejo v. State of Louisiana, and Gross v. FBL, have frequently been criticized because of the changes in law they effected; this article, however, focuses on the process. When the Court decides its own questions, rather than those presented by the parties, it does so without the benefit of a record created below on …

Just The Facts: The Perils Of Expert Testimony And Findings Of Fact In Gay Rights Litigation, Libby Adler

Libby S. Adler

ABSTRACT Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation Before Perry v. Schwarzenegger, striking down Proposition 8 in California, the judicial victories for same-sex marriage all had been decided on motions for summary judgment. None required the testimony of witnesses; none produced a trial transcript; none resulted in findings of fact. But Judge Vaughn Walker of the Northern District of California presided over a trial. He made eighty separate factual findings, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs …

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

The Due Process Rights Of Residential Tenants In Mortgage Foreclosure Cases, Henry Rose

Henry Rose

The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases

(Abstract)

A group who have been hard hit by the recent mortgage foreclosure crisis in the United States are residential tenants. It is estimated that forty percent of the households who have been displaced by mortgage foreclosures are tenants.

Some tenants have been evicted from their homes without notice pursuant to foreclosures of the mortgages on the buildings where they reside. In states which require judicial supervision of mortgage foreclosures, it likely violates basic principles of procedural Due Process for tenants to be evicted without notice. In states that …

Unclear And Unconvincing: The Truthiness Requirement Of California's Ballot Pamphlet Arguments, Michael Boardman

Michael Boardman

“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to …

America's First Wiretapping Controversy In Context And As Context, Wesley Oliver

Wesley M Oliver

No abstract provided.

Should Pennsylvania Amend Its Constitution? The Pennsylvania Bar Association Considers Calls For Reform, John Gedid

John L. Gedid

No abstract provided.

Money And Rights, Deborah Hellman

Deborah Hellman

This article looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.

Due Process In Civil Commitments, Alexander Tsesis

Alexander Tsesis

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood …

Prosecution Without Representation, Douglas L. Colbert

Douglas L. Colbert

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. …

Teaching Controversial Topics, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

At the 2009 Future of Family Law Education conference at the William Mitchell School of Law, the authors participated in a panel discussing strategies for teaching controversial topics, which focused on teaching reproductive rights and related gender issues. This essay collects some of the strategies discussed at the conference. First we address what constitutes a “controversial” legal topic, outlining the several different ways in which a topic might be or become controversial within the context of a particular class. Next, we discuss the importance of laying the groundwork, throughout the semester, for the anticipated—and unanticipated— discussions surrounding controversial topics and …