Law Commons^™

Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins

West Virginia Law Review

No abstract provided.

Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun

Washington and Lee Law Review Online

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps

Indiana Journal of Global Legal Studies

Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.

Aligning Education Rights And Remedies, Joshua Weishart

Law Faculty Scholarship

Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a 'fourth wave" of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the incessant rut of school funding battles, advocates have, in turn, initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, advocates will encounter a beleaguered …

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

Faculty Scholarship

The “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.¹ It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, ^{2 …}

Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall

NULR Online

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market …

Hearing The States, Anthony Johnstone

Pepperdine Law Review

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall

Pepperdine Law Review

Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. …

Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto

Pepperdine Law Review

The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court’s decision-making process might act to reverse this loop and work to depoliticize the Court …

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …

The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet

Pepperdine Law Review

A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions’ erosion has been accompanied by …

August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Constitutional Law In An Age Of Alternative Facts, Allison Orr Larsen

Faculty Publications

Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and— …

Theorizing American Freedom (Review Essay), Anthony O'Rourke

Anthony O'Rourke

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion and …

Remedies Symposium: Article Iii, Remedies, And Representation, Andrew Coan, David Marcus

ConLawNOW

As articulated by the United States Supreme Court, the principal purpose of Article III standing is to force decisions affecting large numbers of people into the democratic process where all affected parties are represented. The logical implication of this “representation-centered theory” for the proper scope of injunctive relief is straightforward. That relief must not exceed what is reasonably necessary to remedy the particularized injury that sets the plaintiff or plaintiffs apart from the general population. The Supreme Court has repeatedly reaffirmed this logic. Yet courts and commentators, including the Court itself, routinely ignore it. The most prominent recent examples are …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

The Constitution And The Language Of The Law, John O. Mcginnis, Michael B. Rappaport

William & Mary Law Review

A long-standing debate exists over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence.

This Article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like “Letters of Marque and Reprisal,” that are unambiguously technical, and terms, like “good behavior,” that are ambiguous in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such …

Korematsu Overruled? Far From It: The Supreme Court Reloads The Loaded Weapon, Lorraine Bannai

Seattle Journal for Social Justice

No abstract provided.

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Katharine Van Tassel

No abstract provided.

Economic Protectionism: Irrationally Constitutional, Joshua Park

Pepperdine Law Review

The Constitution is built on the principle that all citizens are created equal. Naturally, we believe that no law should be passed solely for the sake of benefiting one group over another. Yet, governments continue to pass economic regulations that have no purpose other than maintaining wealth within a specific group, and the judiciary continues to uphold such regulations. While the judiciary purports to uphold challenged legislation only if it passes “rational basis review,” the term “review” is a misnomer because the analysis has essentially become automatic deference. Under the judiciary’s modern treatment of the Equal Protection Clause, successfully challenging …

The Save Act Of 2015: Congress' Attempt To Reprioritize Online Child Sex Trafficking, Ashley A. Cardenas

St. John's Law Review

(Excerpt)

This Note argues that the SAVE Act will not achieve Congress’ goal of prosecuting website operators and stopping the influx of online child sex trafficking advertisements. However, the potential pitfalls of this legislation does not mean the Act should be thrown out in its entirety. Instead, the Act should be rewritten to include well-crafted, yet informative definitions of online child sex trafficking, while also lowering the mens rea requirement and requiring website operators to engage in more due diligence.

Part I outlines the background of Internet sex trafficking in general. Section A discusses the parties involved in online child …

Congressional Control Of Presidential Pardons, Glenn H. Reynolds

Nevada Law Journal Forum

The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act …

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Journal Articles

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic …

Trump, The Court, And Constitutional Law, Erwin Chemerinsky

Indiana Law Journal

In this Essay, I want to offer initial thoughts on what the Trump presidency is likely to mean for constitutional law. First, I want to focus on the lost opportunity: what might have happened had Hillary Clinton replaced Scalia and filled other vacancies on the Court. Second, I want to focus on the reality of what we are likely to see as a result of Neil Gorsuch replacing Antonin Scalia and of other possible vacancies being filled by President Trump. Finally, I want to discuss how progressives should react to this and to the foreseeable future of constitutional law. These, …

Categorizing Student Speech, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Legal Structures In A Game Of Thrones: The Laws Of The First Men And Those That Followed, David P. Weber

South Carolina Law Review

No abstract provided.

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Ecology Of Transparency Reloaded, Seth F. Kreimer

All Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

Sex, Lies, And Ultrasound, B. Jessie Hill

Faculty Publications

State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients’ …