Law Commons^™

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

Outsourcing Democracy: Redefining The Public Private Partnership In Election Administration, Gilda R. Daniels

All Faculty Scholarship

“We are left with a system in which almost every state still outsources its elections to what are actually private organizations.”

Federal, state and local governments are deeply indebted to private organizations, political parties, candidates, and private individuals to assist it, inter alia, in registering voters, getting citizens to the ballot box through get out the vote campaigns (GOTV), assisting limited English proficient (LEP) citizens, and monitoring Election Day activities. In a recent Supreme Court case, Crawford v. Marion County, Justice Souter recognized that voting legislation has “two competing interests,” the fundamental right to vote and the need for governmental …

In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay

All Faculty Scholarship

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and the iconic, if …

“Equal Citizenship Stature”: Justice Ginsburg’S Constitutional Vision, Neil S. Siegel

Faculty Scholarship

In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.

Federal Courts Not Federal Tribunals, Lumen N. Mulligan

Faculty Works

The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase …

The Humanity Of Law, H. Jefferson Powell

Villanova Law Review (1956 - )

No abstract provided.

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …

Louis Henkin: Courage And Convictions, Lori Fisler Damrosch

Faculty Scholarship

Louis Henkin was a man of courage and of convictions. His students at Columbia, who engaged with him inside and outside the classroom during the course of five decades, had many opportunities to learn of his convictions, which were manifest in his teaching, writing and activism. But Henkin would not have spoken in the classroom of his own acts of courage, exemplified by (but not limited to) his combat service in the Second World War, nor would he have drawn attention to other personal virtues. This brief tribute (complementary to others being written by colleagues at Columbia for publication here …

The Treatment Of Isolationist Minorities, Gabriel Rauterberg

Faculty Scholarship

This Note examines what may be the most radical challenge posed by religious subcultures to the liberal politics of modern industrial nations – that of isolationist, nonliberal ( or even illiberal) religious minorities. These subcultures do not seek to integrate with mainstream society or gain power within it, but to withdraw in order to maintain norms widely discrepant from those that are socially dominant. They often seek to place restrictions upon their own members' freedom or activities, in part to maintain the group's differences from the greater society. These cultures, characterized by features as distinctive as collective property ownership, pacificism, …

Justice Stevens' Temperance, Jamal Greene

Faculty Scholarship

On the last opinion day of the last of his 35 Terms on the Supreme Court, Justice John Paul Stevens issued his valedictory opinion, a 57-page dissent in McDonald v. City of Chicago. Justice Stevens laid out an expansive vision of constitutional interpretation that Justice Alito aptly called "eloquent" in his plurality opinion. Not one for sentimental farewells, Justice Scalia was less generous: "Justice Stevens' approach," he wrote in the last line of his concurring opinion," puts democracy in peril."

A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalists fear that our constitutional culture is becoming less popular. At the same time, these scholars often ignore key popular sources of constitutional meaning. Their accounts focus,  instead, on the elite conflicts that give rise to constitutional change, particularly the ongoing debates between elected officials, movement leaders, and the Supreme Court. Although these studies are essential to understanding the pathways for promoting non-Article V constitutional change, they are "popular" only in the sense that they focus on non-judicial actors and politically salient controversies. The constitutional life of the average citizen is generally ignored. If legal scholars are serious about …

Which Came First The Parent Or The Child?, Mary P. Byrn, Jenni Vainik Ives

Faculty Scholarship

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to …

Poison Pens, Intimidating Icons, And Worrisome Websites: Off-Campus Student Speech That Challenges Both Campus Safety And First Amendment Jurisprudence, Kathy Luttrell Garcia

St. Thomas Law Review

As the line between off-campus and on-campus student speech is increasingly blurred by the internet, educators and courts alike are struggling to determine the limits of school authority to restrict student speech that originates off-campus but is directed toward an on-campus audience. Although students retain their First-Amendment-protected rights of free speech and expression on school campuses during school hours, these rights are subject to exceptions. These exceptions are constitutionally permissible, even where the speech could not be restricted off campus, because "student First Amendment rights are 'applied in light of the special characteristics of the school environment." Because of these …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking …

Conditional Spending And Compulsory Maternity, Nicole Huberfeld

Law Faculty Scholarly Articles

More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spending have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women's reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denominates "pure …

Heller As Hubris, And How Mcdonald V. City Of Chicago May Well Change The Constitutional World As We Know It, William G. Merkel

Santa Clara Law Review

No abstract provided.

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

Santa Clara Law Review

No abstract provided.

Placing Your Faith In The Constitution, Harold H. Bruff

Publications

No abstract provided.

Murphy V. Internal Revenue Service, The Meaning Of Income, And Sky-Is-Falling Tax Commentary, Erik M. Jensen

Case Western Reserve Law Review

No abstract provided.

Bobbitt, The Rise Of The Market State, And Race, George A. Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

[Introduction To] The Language Of Law And The Foundations Of American Constitutionalism, Gary L. Mcdowell

Bookshelf

For much of its history, the interpretation of the United States Constitution presupposed judges seeking the meaning of the text and the original intentions behind that text, a process that was deemed by Chief Justice John Marshall to be “the most sacred rule of interpretation.” Since the end of the nineteenth century, a radically new understanding has developed in which the moral intuition of the judges is allowed to supplant the Constitution’s original meaning as the foundation of interpretation. The Founders’ constitution of fixed and permanent meaning has been replaced by the idea of a “living” or evolving constitution. Gary …

The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, Ernest A. Young

Faculty Scholarship

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality.

This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil and Bill …

Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt

Faculty Scholarship

This essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one’s approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …

Government Speech 2.0, Helen Norton, Danielle Keats Citron

Publications

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 decisions, moreover, has the …

Government Speech 2.0, Helen Norton, Danielle K. 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 …

Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman

Law Faculty Scholarship

The United States Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and reaffirmed in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that absent conditions of confinement the Due Process Clause imposes no affirmative obligations upon government to protect an individual’s life, liberty, or property. These decisions reflect the Supreme Court’s broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. Like the constitutions of many other countries, state constitutions have charted a different course. Unlike their federal counterpart, state …

The National Individual Health Insurance Mandate: Ethics And The Constitution, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Within weeks, after signing the nation’s first comprehensive health insurance reform, twenty states filed lawsuits challenging the constitutionality of the Bill’s most politically charged feature—an individual purchase mandate. If anything, the tax penalty is too low compared with the cost of insurance, so it may not sufficiently incentivize healthy individuals. But it remains deeply controversial because it compels individuals to purchase coverage they choose not to have, raising the question whether Congress can lawfully and ethically require individuals to contract with, and transfer money to, a private party. To be sure, the individual mandate lacks a clear American precedent. (It …

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

Dna And Due Process, Brandon L. Garrett

Fordham Law Review

The U.S. Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’s majority opinion proceeded to carefully fashion an important, …