Law Commons^™

Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes

Con Law Center Articles and Publications

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent …

Pandemic Surveillance - The New Predictive Policing, Michael Gentithes

Con Law Center Articles and Publications

Now that the first wave of the coronavirus is behind us, what will the future bring? As governments reopen society following lengthy stay-at-home orders, they must strike a difficult balance. If the return to normalcy is too abrupt, infections could spike again in just a few months, creating a death toll as high as it might have been with no quarantine at all.1 An effective removal of quarantine orders, then, must ensure that the return to normalcy is appropriately paced. But how can we best plan to put our economy back together without jeopardizing public health?

Officials in New York …

Gobbledygook: Political Questions, Manageability, & Partisan Gerrymandering, Michael Gentithes

Con Law Center Articles and Publications

In finding that extreme partisan gerrymandering is a nonjusticiable political question in Rucho v. Common Cause, the Supreme Court fixated upon the lack of judicially manageable standards to evaluate their constitutionality. The decision culminated in the Court’s recent reinforcement of that manageability focus in partisan gerrymandering cases, with Chief Justice Roberts even calling efforts to numerically calculate the extremity of such gerrymandering “sociological gobbledygook.”

Such belabored fears about manageability misread the questions in the political question doctrine. The doctrine requires the Justices to initially ask, as a normative matter, whether the judiciary should resolve the controversy in our constitutional system, …

More Than The Vote: The Nineteenth Amendment As Proxy For Gender Equality, Tracy Thomas

Con Law Center Articles and Publications

The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling …

Suspicionless Witness Stops: The New Racial Profiling, Michael Gentithes

Con Law Center Articles and Publications

Young men of color in high-crime neighborhoods are surrounded by poverty and crime, yet distrustful of the police who frequently stop, frisk, and arrest them and their friends. Every encounter with the police carries the potential for a new arrest or worse, fostering a culture of fear and distrust of law enforcement. That culture exacerbates the problems facing the officers patrolling these neighborhoods as more crimes go unsolved because witnesses are unwilling to come forward.

In the past several decades, officers have responded by using a stop-and-frisk technique of dubious constitutionality to control crime. Despite its disastrous implications for the …

Taking Stock Of The Religion Clauses, John D. Inazu

Scholarship@WashULaw

After a few decades of relative quiet, the Supreme Court has in recent years focused once again on the religion clauses and related statutes.

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Faculty Scholarship

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

A Public Health Law Path For Second Amendment Jurisprudence, Michael Ulrich

Faculty Scholarship

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Steven Calabresi, Gary S. Lawson

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.
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/="/">First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. …

Nuclear Weapons, The War Powers, And The Constitution: Mutually Assured Destruction?, John M. Dipippa

South Carolina Law Review

No abstract provided.

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

The Need For A Wealth Inequality Amendment, Stuart Ford

West Virginia Law Review

No abstract provided.

Hard Cases Make Bad Law: Extraterritorial Application Of The United States Constitution, Brendan O. Beutell

West Virginia Law Review

The Constitution’s extraterritorial scope does not arise often in litigation. Two recent decisions broached the issue. Both arrived at opposite conclusions. And these decisions share a common thread: They confuse more than they clarify while begetting novel questions of law. Does the Constitution protect noncitizens abroad? If so, how? If not, why not? This Note addresses each of these questions in turn. Ultimately, this Note concludes that the Constitution does not have any extraterritorial application whatsoever to noncitizens abroad.

Financial Oversight And Management Board For Puerto Rico V. Aurelius Investment, Llc, Rafael Cox Alomar

Court Briefs

No abstract provided.

Symposium: 50 Years With The 25th Amendment: Interpreting The Twenty-Fifth Amendment: Major Controversies, Harold Hongju Koh

ConLawNOW

In recent months, probably no constitutional provision has been more discussed, but less well understood, than Section Four of the Twenty-fifth Amendment. In its fifty-year history, the provision has never been triggered. But were that to happen, that constitutional provision could lead to the permanent separation of an American President from his powers and duties within less than one month. The Amendment's text raises numerous interpretive questions. This lecture functions as a reader's guide to Yale Law School Rule of Law Clinic's Reader's Guide to the Twenty-Fifth Amendment to the United States Constitution, which seeks to answer those questions. The …

Brief Of Amicus Curiae 290 Criminal Law And Mental Health Law Professors In Support Of Petitioner's Request For Reversal And Remand, Kahler V. Kansas, 18-6135 (U.S. June 6, 2019), Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles.

Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional …

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.

The Popular Constitutional Canon, Tom Donnelly

William & Mary Bill of Rights Journal

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie, Remedies, And Trade Secrets, Camilla A. Hrdy

ConLawNOW

At “Erie at Eighty: Choice of Law Across the Disciplines,” I learned a lot from my colleagues on the intellectual property law panel. I also learned a lot from remedies expert Professor Michael Morley. Professor Morley argued quite vociferously that federal courts have wrongly been applying federal rules in deciding whether to grant injunctions for state law claims in diversity cases. In other words, federal courts regularly violate the Erie doctrine.

This has some fascinating implications for trade secret law. Prior to federalization, when plaintiffs could only bring state civil trade secret claims, federal courts in diversity cases naturally …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

ConLawNOW

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: An Erie Approach To Privilege Doctrine, Megan M. La Belle

ConLawNOW

Privilege rules, which determine whether information is discoverable in a particular litigation, often vary from jurisdiction to jurisdiction. Consequently, the Erie doctrine and other choice-of-law principles play an important role in shaping privilege law. This essay, written for the Sixth Annual Constitutional Law Conference at the University of Akron School of Law, considers two recent privilege cases—HannStar Display Corp. v. Sony Electronics, Inc. and In re Silver—which involved the California mediation privilege and the federal patent-agent privilege, respectively. While the HannStar court ignored well-established choice-of-law principles, the Silver decision shows that, when applied and interpreted appropriately, doctrines …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie'S Intellectual History, Craig Green

ConLawNOW

Erie R.R. v. Tompkins is an iconic case in American law, and it has held that status for a very long time. One byproduct of such longevity is that the decision’s meaning and context have changed dramatically through the ages. Indeed, the sheer variability of Erie’s interpretations helps to explain why the decision has remained such an important, controversial, and influential feature of American legal thought for eighty years. This essay offers a brief and schematic account of Erie’s intellectual history, while also offering cautionary signals about Erie’s most recent group of interpreters. Even for observers who might endorse Erie’s …

Reframing The Affirmative Action Debate To Move Beyond Arguments For Diversity And Interest Convergence, Adrian Jamal Mclain, Steven L. Nelson

Barry Law Review

No abstract provided.

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Scholarship

A range of scholars has subjected qualified immunity to a wave of criticism—and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a “compensating …

A Comprehensive Rethinking Of Equal Protection Post-Obergefelll: A Plea For Substantivity In Law, Shannon Gilreath

Barry Law Review

No abstract provided.