Constitutional Law Commons^™

Political Question Or Judicial Query: An Examination Of The Modern Doctrine And Its Inapplicability To Human Rights Mass Tort Litigation, Nancy S. Williams

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

The Art Of Persuasion: International/Comparative Human Rights, The Supreme Court Of Canada And The Reconstitution Of The Canadian Security Certificate Regime, Graham Hudson

PhD Dissertations

In this dissertation, the author explores the jurisprudential foundations of the “relevant and persuasive” doctrine, which authorizes Canadian judges to rely on international and comparative human rights when interpreting the Charter of Rights and Freedoms. Viewed in its best light, this doctrine improves respect for human rights in two distinct ways: securing Canada’s compliance with its international human rights obligations and enhancing the responsiveness of state law to the global and multicultural context of Canadian society. However, actual jurisprudence suggests that the doctrine has helped undermine principles of respect for constitutional supremacy and respect for international law, in part because …

Federal Governmental Power: The Voting Rights Act, Michael C. Dorf

Touro Law Review

No abstract provided.

Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr.

Pepperdine Law Review

No abstract provided.

Korematsu V. United States: A Tragedy Hopefully Never To Be Repeated , Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald

Pepperdine Law Review

A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.

Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar

Pepperdine Law Review

The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.

In Defense Of The Obama Administration's Non-Defense Of Doma, Daniel J. Crooks Iii

Legislation and Policy Brief

The Constitution charges the President with the duty to “take Care that the Laws be faithfully executed . . . .” Moreover, the President takes an oath to “preserve, protect and defend the Constitution of the United States.” Although “[g]enerally, these duties are compatible . . ., when the Executive faces a law that he believes is unconstitutional, he must decide whether the law should be executed as written and defended if attacked, or whether the duty of faithfulness to the Constitution requires its repudiation.” This decision belongs to the President alone as the head of a co-equal branch of …

Breaking The Seal On White-Collar Criminal Search Warrant Materials , David Horan

Pepperdine Law Review

No abstract provided.

Wilson V. Layne: Increasing The Scope Of The Fourth Amendment Right To Privacy, Ashlea Wright

Pepperdine Law Review

No abstract provided.

Racial Disparities In Sentencing In The U.S. And Georgia, Kamal Rattray, Nicole Lee

Georgia Journal of Public Policy

Incarceration represents the ultimate use of coercive power, and in the state of Georgia, that power is being disproportionately levied upon people of color, particularly African Americans.1 According to 2011 statistics from the Georgia Department of Corrections, the total prison population statewide was approximately 53,341 inmates. The majority of that number were Blacks (33,069 inmates), followed by Whites (17,752 inmates), Hispanics (2,306 inmates) and other ethnic groups.

Comments On Michel Rosenfeld's The Identity Of The Constitutional Subject: Selfhood, Citizenship, Culture, And Community, Deborah Hellman

Cardozo Law Review

No abstract provided.

Goren V. Home Center (Do It Yourself) Ltd., Dorit Beinisch, Neal Hendel, Isaac Amit

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Can a showing of a wage gap between a female employee and a male employee for equal work or work of equal value at the same workplace can “automatically” substantiate a cause of action under the Equal Pay for Female and Male Employees Act 1996 (hereinafter: the Equal Pay Act) as well as under the Equal Opportunities in Employment Act 1988 (hereinafter: the Equal …

Tying The Knot: Determining The Legality Of Same-Sex Marriage And The Courts’ Responsibilities In Defining The Right, Eva Cerreta

Honors Scholar Theses

Ambiguous terms and phrases in the United States Bill of Rights have caused a great deal of controversy throughout United States history over what rights truly exist and which branch of government should be responsible for determining those rights. These questions are currently being debated in states throughout the country concerning the right to same-sex marriage. This thesis answers these questions of legality and responsibility concerning the right to same-sex marriage. The thesis uses case law of the doctrinal development of the Equal Protection Clause and the right to privacy to suggest that the Equal Protection Clause provides the soundest …

Qualifying Qualified Immunity, John C. Williams

Vanderbilt Law Review

I imagine Leslie Weise and Alex Young had similar feelings when, in 2005, they attended a government-funded speech by President George W. Bush in Denver. But those feelings appear to have been mixed with ones of discontent and dissent toward the President-for the pair arrived in a car with a bumper sticker reading "No More Blood for Oil," an obvious jab at Bush's Iraq War policies. On instructions from the White House Advance Office, a volunteer named Michael Casper approached Weise and Young at their seats and ejected them from the event. The Secret Service later told Weise and Young …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Legislation and Policy Brief

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea

Michigan Law Review

Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears …

Sell V. United States: Is The Supreme Court Giving A Dose Of Bad Medicine?: The Constitutionality Of The Right To Forcibly Medicate Mentally Ill Defendants For Purposes Of Trial Competence, Dina E. Klepner

Pepperdine Law Review

No abstract provided.

Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera

Schmooze 'tickets'

No abstract provided.

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …

Are Bills Of Attainder The New Currency? Challenging The Constitutionality Of Sex Offender Regulations That Inflict Punishment Without The "Safeguard Of A Judicial Trial", Joel A. Sherwin

Pepperdine Law Review

No abstract provided.

The Ninth Circuit's Perry Decision And The Constitutional Politics Of Marriage Equality, William N. Eskridge

Georgetown Law Faculty Publications and Other Works

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay …

Brief Of Committee Of Law Professors And Historians As Amici Curaie, In Support Of Plaintiffs-Appellant, Coalition To Defend Affirmative Action V. Brown, 674 F.3d 1128 (2012) (No. 11-15100, 11-15241), Wilson Huhn

Con Law Center Amicus Briefs

The purpose of this brief is to place the dispute over affirmative action in California’s public universities within a broader historical context.  State constitutional amendments such as Proposition 209 are not uncommon in American history.  In reaction to calls for reform from a minority group – whether it be the end of slavery, the enactment of non-discrimination laws, or the adoption of voluntary programs of racial integration – the majority has often responded by attempting to prevent the debate from occurring, by denying members of the minority group the opportunity to participate in the political process, or by making it …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

Brief For Prof. Leslie C. Griffin As Amica Curiae In Support Of Neither Party, Cannata V. Catholic Diocese Of Austin, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.