Law Commons^™

Administrative Federalism As Separation Of Powers, David S. Rubenstein

Washington and Lee Law Review

Federal agencies are key players in our federalist system: they make front-line decisions about the scope of federal policy and whether such policy should preempt state law. How agencies perform these functions, and how they might fulfill them better, are questions at the heart of “administrative federalism.” Some academic proposals for administrative federalism work to enhance states’ ability to participate in federal agency decisionmaking. Other proposals work to protect state autonomy through adjustments to the Supreme Court’s administrative preemption doctrine. As jurists and scholars debate what these proposals entail for federalism, this Article doubles-down with a twist: it examines what …

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

Scholarly Works

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the …

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards

Scholarship@WashULaw

Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont …

A Confident Pluralism, John D. Inazu

Scholarship@WashULaw

The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state …

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer

Faculty Publications

No abstract provided.

Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner

Loyola of Los Angeles Law Review

In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California’s Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment—in effect, an “executive veto” of popularly-enacted initiatives.

The Article examines this new “executive veto” in depth. It places Hollingsworth in context, discussing the initiative process …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

Faculty Scholarship

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Scholarly Articles in Law Reviews & Journals

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Yes, Virginia, There Are Stupid Questions, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Specialized Standards Of Review, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

ABSTRACT The applicable standard of review on appeal is governed by a simple rule: appellate courts review questions of law de novo, questions of fact for "clear error, " and questions of discretion for "abuse of discretion. Despite the apparent simplicity of the rule, its application has been uneven, to state it mildly. Scholars have written extensively about the application of the rule, but have yet to consider whether the traditional rule of "deference " should be altered when the appellate court is a specialized court. Despite the dearth of legal scholarship on specialized deference, the Supreme Court is keenly …

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan

Faculty Publications

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child …

Death, Desuetude, And Original Meaning, John F. Stinneford

William & Mary Law Review

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Pennies On The Dollar: Reallocating Risk And Deficiency Judgement Liability, Kristen Barnes

South Carolina Law Review

No abstract provided.

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is …

Climate Balkanization: Dormant Commerce And The Limits Of State Energy Policy, Jonathan H. Adler

Faculty Publications

Through the imposition of mandates on what sorts of energy may be produced or sold, state regulatory efforts have imposed burdens on interstate energy markets. In some cases, these burdens are explicit, as when states have privileged in-state energy sources at the expense of out-of-state producers or sellers. In other cases, these burdens are the inevitable consequence of state efforts to reduce the environmental impacts of energy consumed within the state. Such restrictions, and their associated burdens on interstate commerce, raise serious constitutional questions. Under the so-called "Dormant Commerce Clause," state regulations that discriminate against out-of-state actors are presumptively unconstitutional, …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Akron Law Faculty Publications

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Akron Law Faculty Publications

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline D. Lipton

Akron Law Faculty Publications

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Combating Cyber-Victimization, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

Akron Law Faculty Publications

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Dr. Carb Or: How I Learned To Stop Worrying About The Feds And Love States’ Rights, Dan Strong

Washington and Lee Journal of Energy, Climate, and the Environment

Climate change is one of the largest environmental problems the world is currently facing. At the forefront of the climate change issue is the problem of carbon emissions. Environmentalists were hopeful that a national regulatory structure would be created with the enactment of the Clean Air Act in the 1970s. Since its enactment, however, it is clear the Clean Air Act was not the solution to the national carbon emissions problem environmentalists were hoping for. With the federal government failing to act, states have taken it upon themselves to regulate carbon emissions. California, with its enactment of the California Low …

The Road Paved With Gravel: The Encroachment Of South Carolina's Judiciary Through Legislative Judicial Elections, Samantha R. Wilder

South Carolina Law Review

No abstract provided.

Rebutting The Strong Presumption Of Reliability For Effective Assistance: The Pursuit Of Cumulative Analysis For Strickland Claims In South Carolina, Benjamin Dudek

South Carolina Law Review

No abstract provided.

Preemption And United States V. South Carolina: Undermining Our Nation's Border And The Constitution's Border Between State And Federal Sovereignty, George E. Campsen Iii

South Carolina Law Review

No abstract provided.

Weakening The Ripeness Trap For Federal Takings Claims: Sansotta V. Town Of Nags Head And Town Of Nags Head V. Toloczko, Michael B. Kent

South Carolina Law Review

No abstract provided.

Mini-Domas As Political Process Failures: The Case For Heightened Scrutiny Of State Anti-Gay Marriage Amendments, Steve Sanders

NULR Online

No abstract provided.