Law Commons^™

Originalism And Same-Sex Marriage, Steven G. Calabresi, Hannah M. Begley

University of Miami Law Review

This article examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Constitutional Personhood, Zoe Robinson

College of Law Faculty

Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens …

A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian

Washington University Undergraduate Law Review

The central question presented in this paper is whether specialty license plates constitute government speech, and are thus subject to disapproval by the Board of the Texas Department of Motor Vehicles. The core concerns reviewed in this research, largely focus on defining whose speech specialty license plates are. The purpose is to investigate and analyze the precedent established as a result of a recent case, Walker v. Texas Division, Sons of Confederate Veterans. The paper thoroughly reviews the arguments made in the majority opinion, as well as those of the dissenting opinion, with an interdisciplinary approach. The argument presented …

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law Review

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …

The Limits Of Liberty: The Crime Of Male Same-Sex Conduct And The Rights To Life And Personal Liberty In Singapore: Lim Meng Suang V Attorney-General [2015] 1 Slr 26, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

In Lim Meng Suang v Attorney-General (2014), the Singapore Court of Appeal held that s 377A of the Penal Code, which criminalises acts of “gross indecency” between men whether occurring in public or private, does not infringe either the rights to equality and equal protection guaranteed by Art 12(1), or the rights to life and personal liberty guaranteed by Art 9(1) of the Constitution. This article examines the analyses of the latter provision by the Court of Appeal in Lim Meng Suang, and by the High Court in Tan Eng Hong v Attorney-General (2013) which was one of the two …

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Qualified Immunity When Facts Are In Dispute, Leon Friedman

Touro Law Review

No abstract provided.

The Theory Of Municipal Custom And Practice, Karen Blum

Touro Law Review

No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Touro Law Review

No abstract provided.

Prove Yourselves: Oliver Wendell Holmes And The Obsessions Of Manliness, John M. Kang

West Virginia Law Review

No abstract provided.

Appellate Remedy: The Ancient Precedents Of A Modern Right, Peter S. Poland

The Journal of Appellate Practice and Process

No abstract provided.

A Supreme Court Homecoming, George S. Isaacson

The Journal of Appellate Practice and Process

No abstract provided.

Constitutional Law—Fourth Amendment And Seizures— Accidental Seizures By Deadly Force: Who Is Seized During A Police Shootout? Plumhoff V. Rickard, 134 S. Ct. 2012 (2014)., Adam D. Franks

University of Arkansas at Little Rock Law Review

No abstract provided.

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David H. Hudson Jr., Emily H. Harvey

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutionalizing Corporate Law, Elizabeth Pollman

Vanderbilt Law Review

The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity …

Combining Constitutional Clauses, Michael Coenen

Journal Articles

No abstract provided.

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

Scholarly Works

The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural …

Legal Formulations Of A Human Right To Information: Defining A Global Consensus, Kimberli Kelmor

Georgetown Law Faculty Publications and Other Works

There is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of definitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through all levels of government including national sub-constitutional laws, national constitutions, and regional and international treaties. In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. Thus, the increasing number …

What Two Legal Scholars Learned From Studying 70 Years Of Supreme Court Confirmation Hearings, Lori A. Ringhand, Paul Collins

Popular Media

This article in The Conversation on March 21, 2016 and moves beyond the conventional wisdom espoused by Biden, Kagan and others, and presents a strong case for an alternative view of the hearings. Examining every statement made at confirmation hearings from 1939 to 2010, we conclude the hearings are important to the health of American democracy. Based on this, we’d like to see partisan politics pushed aside and Judge Merrick Garland to get a hearing.

The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz

Touro Law Review

No abstract provided.

Binding Authority: Unamendability In The United States Constitution—A Textual And Historical Analysis, George Mader

Marquette Law Review

We think of constitutional provisions as having contingent permanence—they are effective today and, barring amendment, tomorrow and the day after and so on until superseded by amendment. Once superseded, a provision is void. But are there exceptions to this default state of contingent permanence? Are there any provisions in the current United States Constitution that cannot be superseded by amendment—that are unamendable? And could a future amendment make itself or some portion of the existing Constitution unamendable?

Commentators investigating limits on constitutional amendment frequently focus on limits imposed by natural law, the democratic underpinnings of our nation, or some other …

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

The Absurd Logic Behind Florida’S Docs Vs. Glocks Law, Dahlia Lithwick, Sonja R. West

Popular Media

This article published at Slate.com on January 8, 2016, reviews the Wollschlaeger v. Governor of the State of Florida case in which the Florida legislature passed a law that bars health care workers from discussing or recording anything about their patients’ gun ownership or safety practices that could be deemed in bad faith, irrelevant, or harassing.

Marriage, Tradition, Multiculturalism And The Accommodation Of Difference In Australia, Michael Quinlan

The University of Notre Dame Australia Law Review

This paper examines marriage in multicultural and multi-faith Australia. It considers the history of, and reasons for, State recognition of marriage in Australia between one man and one woman entered into voluntarily for life. It argues that the tradition in Australia since European settlement has been for the State to only recognize this traditional form of marriage as marriage. The paper considers the meaning of equality and discrimination and argues that for those concepts to have meaning in the context of marriage it is first necessary to have a clear understanding of why the State does and should continue to …

Brief For Catholics For Choice Et Al. As Amici Curiae Supporting Respondents, Zubik V. Burwell, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Scholarly Publications

Many of the Supreme Court's important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are "contingent" constitution- al determinations: the Court's conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts-particularly in the realm of campaign finance- require reform as well. Stare decisis purportedly insulates the Court's purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, …

Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …