Law Commons^™

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Indiana Law Journal

No abstract provided.

Dog Wags Tail: The Continuing Viability Of Minority-Targeted Aid In Higher Education, Osamudia R. James

Indiana Law Journal

No abstract provided.

Obama's Equivocal Defense Of Agency Independence, Kevin M. Stack

Vanderbilt Law School Faculty Publications

You can't judge a President by his view of Article II. At the very least, only looking to a President's construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted.

President Obama is no exception, as revealed by his defense of the constitutionality of an independent agency from challenge under Article II in Free Enterprise Fund v. Public Company Accounting Oversight Board' (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEC), created to regulate accounting of public companies in the wake of …

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Martin H. Redish, Peter Julian, Samantha Zyontz

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

"You Crossed The Fog Line!" - Kansas, Pretext, And The Fourth Amendment, Melanie Wilson

Scholarly Works

This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using "fog-line" traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

District Of Columbia V. Heller: The Second Amendment Shoots One Down, Sarah Perkins

Louisiana Law Review

No abstract provided.

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

The Legitimacy Of The Juridical: Constituent Power, Democracy, And The Limits Of Constitutional Reform, Joel Colon-Rios

Osgoode Hall Law Journal

This article asks and answers the question of what conditions must be met for a constitutional regime to enjoy democratic legitimacy. It argues that the democratic legitimacy of a constitutional regime depends on its susceptibility to democratic re-constitution. In other words, it argues that a constitution must provide an opening, a means of egress for constituent power to manifest from time to time. In developing this argument, the article advances a distinction between ordinary constitutional reform -- understood as subject to certain limits -- and the exercise of constituent power through which a society produces novel juridical forms without being …

Constitutionalism: A Skeptical View, Jeremy Waldron, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

Punitive Damages And The Constitution, Thomas H. Dupree Jr.

Louisiana Law Review

No abstract provided.

Thirteen Ways Of Looking At Buck V. Bell: Thoughts Occasioned By Paul Lombardo's Three Generations, No Imbeciles, Michelle Oberman

Journal of Legal Education

No abstract provided.

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

Scholarly Works

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its first …

Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt

Faculty Working Papers

This article examines the drafting process of the new Iraqi constitution, which took place in 2004 and 2005 as a result of the U.S. invasion of Iraq. It addresses the role of Islamic law in the Iraqi legal system prior to the invasion and considers how a new constitution may deal with the question and analyzes, based on Iraq's history, current situation, and the experience of other similar countries, how Islamic law may be retained or incorporated into the new Iraqi legal system. While the constitutional discussion is important, the Article also shows who debates over Islamic law in Iraq …

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

Harmful Speech And The Culture Of Indeterminacy, Anthony D'Amato

Faculty Working Papers

I advocate two propositions in this Essay: the constitutional law of at least one category of content regulation of free speech is indeterminate, and recognition of this indeterminacy has been and ought to continue to be the Supreme Court's decisional basis for protecting speech against content regulation. Milkovich is worth examining at some length, not only because of the Court's failure to come up with general guidelines (after all, pragmatic indeterminacy predicts that failure!), but also because what the Court did say cannot even guide the lower court on remand.

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Lovell Banks

Faculty Scholarship

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge.

Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …

Government Speech 2.0, Helen L. Norton, Danielle Keats Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Balancing Security And Liberty In Germany, Russell A. Miller

Scholarly Articles

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …

Constitutional Authority And Subversion: Egypt's New Presidential Election System, Kristen Stilt

Faculty Working Papers

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to …

Constitutional Politics And Balanced Budgets, Nancy Staudt

Faculty Working Papers

Unbalanced budgets have sparked decades of debate among legislators, scholars, and the public at large. Although the controversy has abated somewhat in recent years, many continue to believe that Congress has a tendency to pursue a level of public debt that is both inefficient and unfair. Foremost among those who criticize the federal budgeting process are fiscal constitutionalists, a group of public choice scholars who believe the constitutional constraints are the only means by which the public will obtain protection from legislative fiscal irresponsibility. This article explores the public choice argument for a balanced budget amendment and argues that it …

Taxation Without Representation, Nancy Staudt

Faculty Working Papers

Poll taxes are unconstitutional and yet Americans continue to link political rights to economic status. When taxpayers claim, "We pay taxes and therefore should decide how public monies are spent," they claim a privileged position in society based on their monetary contributions to the state and federal fiscal position that, by implication, nontaxpaying Americans should not have. Not only do taxpayers claim they deserve special political privileges, but the law itself continues to couple political rights to taxpaying status in ways that legal scholars have largely left unexplored. This article examines a range of political benefits tied to the payment …

Aspects Of Deconstruction: The "Easy Case" Of The Under-Aged President, Anthony D'Amato

Faculty Working Papers

When the deconstructionist says that all cases are to some degree problematic, the mainstream legal scholar gleefully pulls out a favorite crystal-clear case and asserts "not this one!" Judging from the law review commentary, the most popular of these "easy cases" concerns the constitutional mandate that the President shall be at least thirty-five years of age. Deconstructionists say that all interpretation depends on context. Radical deconstructionists add that, because contexts can change, there can be no such thing as a single interpretation of any text that is absolute and unchanging for all time.

easy case, deconstruction in law, US Constitution …

A New Political Truth: Exposure To Sexually Violent Materials Causes Sexual Violence, Anthony D'Amato

Faculty Working Papers

The Meese Commission gave this nation a new political truth that in years to come will undoubtedly play an important role in federal or state efforts to restrict or suppress speech having pornographic content. Legislators, policymakers and the general public will quote and rely upon the Commission's key finding that exposure to sexually violent materials "bears a causal relationship" to acts of sexual violence, unaware that the principal drafter of the Report played down this confidence in a separately published academic essay.

Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe

Faculty Working Papers

Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic …

Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, James E. Pfander, Jonathan L. Hunt

Faculty Working Papers

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued …

How Is Islam The Solution?: Constitutional Visions Of Contemporary Islamists, Kristen Stilt

Faculty Working Papers

This Article uses documents issued by the Muslim Brotherhood, in particular the lengthy 2007 "Political Party" Platform, and personal interviews with Brotherhood leadership to examine the group's specific goals and beliefs for the place of religion within the structure of the Egyptian legal system. While many important angles need to be explored, I focus on one topic that has drawn the most attention to the Brotherhood, the place of religion in the state, or religion defined and enforced by state institutions. I show that the Brotherhood carefully acknowledges the existing constitutional structure and jurisprudence on the position of Islam in …

Appellate Review Of Social Facts In Constitutional Rights Cases, Caitlin E. Borgmann

Publications and Research

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts' findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except …

Rosy Pictures And Renegade Officials: The Slow Death Of Monroe V. Pape, 78 Umkc L. Rev. 889 (2010), Alan K. Chen

Sturm College of Law: Faculty Scholarship

The architecture of federal constitutional remedies involves a matrix of causes of action and affirmative theories of relief that facilitate protection of individual constitutional rights and the evolution of constitutional doctrine. At the same time, lawsuits by private parties to secure constitutional enforcement present a number of structural constitutional challenges that have motivated the Supreme Court to bar or substantially limit many important forms of constitutional remedies. In most cases when the Court does so, however, its decisions explicitly or implicitly leave room for alternative remedies that provide an escape hatch for the litigant whose attempt to enforce the Constitution …

Embryo Fundamentalism, Naomi R. Cahn, June Caborne

GW Law Faculty Publications & Other Works

The battle for the future of assisted reproduction technologies (ART) has been joined. The tacit compromise underlying assisted reproduction - no laws are passed that even tangentially sanction embryo destruction and no laws are passed that intrude on the profitability of fertility treatments - may be coming to an end. As use of ART has increased, so have calls for supervision and oversight. In the wake of "Octomom" Nadya Suleman's use of in vitro fertilization (IVF) to give birth to octuplets, the calls to regulate assisted reproduction have become even more pressing. At the same time, religious communities ambivalent about …