Law Commons^™

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …

Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Carmody Tilley

Faculty Publications

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several …

Symposium: 19th Amendment At 100: Many Pathways To Suffrage, Other Than The 19th Amendment, Ann D. Gordon

ConLawNOW

When the Nineteenth Amendment to the U.S. Constitution appears in historical memory as the intended objective in the long march of woman suffragists, the complexity of changing voting rights is obscured. This essay looks at a variety of ways that women tried to break through the male monopoly of political power in the nineteenth and early twentieth centuries. In the earliest days of agitation, women took for granted that qualifications for voting were set solely by the states. Their earliest political pleas were made to state constitutional conventions. The last state victories were won in 1918. After the Civil War, …

The Untouchable Executive Authority: Trump And The Section 232 Tariffs On Steel And Aluminum, Arim Jenny Kim

University of Miami Business Law Review

In 2018, President Trump championed his way through the imposition of the Section 232 Tariffs—a heavy tax on various imports, including steel and aluminum—by broadcasting a supposedly-imminent threat to the U.S. national security. This plea, however, has been criticized as a veil for President Trump’s economic protectionism policy. Meanwhile, others have questioned the constitutionality of the statute creating the President’s authority to impose these tariffs in the first place. This Comment explores the issues arising from President Trump’s Section 232 Tariffs on steel and aluminum: (1) the validity and justiciability of President Trump’s actions under Section 232 of the Trade …

Symposium: The 19th Amendment At 100: Citizen Soldiers And The Foundational Fusion Of Masculinity, Citizenship, And Military Service, Jamie R. Abrams, Nickole Durbin

ConLawNOW

The Akron Law School’s conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

Symposium: The 19th Amendment At 100: From The Vote To Gender Equality: The Constitutional Development Of The Nineteenth Amendment In The Decade Following Ratification, Paula A. Monopoli

ConLawNOW

This essay is based on my remarks at the Center for Constitutional Law’s symposium on the Centennial of the Nineteenth Amendment. It offers a brief summary of the thesis of my forthcoming book from Oxford University Press. In Constitutional Orphan: Gender Equality and the Nineteenth Amendment (forthcoming 2020), I argue that the ratification of the Nineteenth Amendment in 1920 represented a significant moment in American history, one which held the promise of change in the political, civil and social status of women in our republic. However, what emerged from a decade of contestation was a thin conception of the Nineteenth’s …

Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock

William & Mary Bill of Rights Journal

Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …

Symposium: The 19th Amendment At 100: From The Vote To Gender Equality: Woman Suffrage: The Afterstory, Ellen Carol Dubois

ConLawNOW

The history of the US woman suffrage movement did not end with the ratification of the Nineteenth Amendment in 1920. While numbers slowly grew of eligible women voting, veterans of the suffrage movement organized to win elective office and use the power of women's votes to gain important legislative gains. This article follows both voting rates and women winning public office up to the revival of feminism in the 1960s.

Holistic Review In Race-Conscious University Admissions, Hal Arkes, George W. Dent Jr.

Faculty Publications

The Supreme Court has held that race may be considered as “a factor of a factor of a factor” within a “holistic” program of university admissions if the university can satisfy a heavy burden of proving that the program is “narrowly tailored” to achieve the educational benefits of diversity. The Court has listed the desired benefits of racial diversity, but it has not discussed what evidence a university needs to prove that its program is “narrowly tailored” to achieve those benefits.

This article addresses that issue. The field of psychology offers abundant research about the process of judgment and decision-making …

A Unified Constitutional View Of Financial Punishment: Synthesizing The Excessive Fines Clause And Bearden­ Based Protections, Joshua A. Feinzig

Faculty Scholarship

This Note coordinates the Eighth Amendment Excessive Fines Clause with the Fourteenth Amendment wealth-discrimination protection set forth in Bearden v. Georgia It is generally assumed that the two protections operate independently: while the Excessive Fines Clause protects individuals against exorbitant financial obligations, Bearden limits the state from converting criminal debt into a severe liberty deprivation. But in recognizing how the two doctrines are normatively and functionally reinforcing, this Note proposes a single framework for considering financial punishment's constitutionality.

If the Eighth Amendment protection applies at the imposition of a financial punishment, Bearden provides a "second look" at the constitutionality of …

Misplaced Constitutional Rights, Brandon L. Garrett

Faculty Scholarship

Constitutional rulings risk an unnoticed type of mission creep: misplacement through adoption in settings that they were not designed to regulate. This Article describes how in a set of important areas—and sometimes despite the Supreme Court’s explicit cautionary language—constitutional rules have taken hold outside of the settings that they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights and standards are often context limited to particular government actors, procedural settings, or remedies. Based on the text of the Constitution or precedent, some rights apply only during civil cases, while others apply only during criminal cases; …

PortugalʼS Response To Covid-19, Ana Santos Rutschman

All Faculty Scholarship

This essay for the Regulatory Review's special series on Comparing Nations’ Responses to COVID-19 examines the early response to the pandemic in Portugal. The essay focuses on measures adopted in connection with the declarations of state of emergency and state of calamity, as well as the treatment of migrant populations throughout the pandemic.

Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey

Elisabeth Haub School of Law Faculty Publications

The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

American University Law Review

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of . . . commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, …

How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus

St. Thomas Law Review

My whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton …

Manipulating Risk: Immigration Detention Through Automation, Kate Evans, Robert Koulish

Lewis & Clark Law Review

The U.S. Department of Homeland Security arrests as many as 500,000 migrants per year and detains more than 350,000 of them through Immigration and Customs Enforcement (ICE). Since 2012, ICE has relied on an automated Risk Classification Assessment (RCA) system to recommend whom to detain and whom to release. The authors are the first to obtain access to its algorithm and this Article is the first to make that system’s methodology public. While purportedly basing these recommendations on indicia of flight risk and risk to public safety, the RCA in fact relies on an algorithm driven by political preferences. By …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Disuniformity Of Federal Constitutional Rights, Joseph Blocher

Faculty Scholarship

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.

Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not …

The Rise And Fall Of Transcendent Constitutionalism In The Civil War Era, Cynthia Nicoletti

Faculty Scholarship

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war's nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war's centripetal energy was a doubleedged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists …

State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone

Faculty Publications & Other Works

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 42 U.S.C. § 14141 to authorize the U.S. Attorney General to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (DOJ) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year and the Trump Administration has recently announced it would no longer enforce § 14141.

In response, a …

Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley

Faculty Publications & Other Works

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several …

Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry

Faculty Publications & Other Works

No abstract provided.

The Aftermath Of Takings, Shelley Ross Saxer

American University Law Review

American society will face monumental challenges as we confront crumbling infrastructure, new technologies, and climate change adaptation. Eminent domain is a powerful tool that necessarily impacts local communities when used for infrastructure such as roads, mass transit, pipelines, the electrical grid, and border walls. We will likely need to rely on both public and private eminent domain to redevelop neighborhoods and make our communities more resilient to climate change by adapting land uses to rising sea levels, drought, wildfires, and severe weather events.

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …

The Lgbtq Equality Gap And Federalism, Nancy J. Knauer

American University Law Review

LGBTQ people in the United States live with an Equality Gap that seems to grow wider with each legislative session. The majority of states do not have nondiscrimination protections in place for LGBTQ people. In the absence of blanket federal non-discrimination protections, a same-sex couple can be denied service by bakers, catering halls, and photographers while trying to exercise their constitutionally protected right to marry. A transgender person can be denied access to a public bathroom that matches their gender identity. A federally funded adoption agency can refuse to work with LGBTQ persons who wish to adopt. In addition, many …

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Publications

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.