Constitutional Law Commons^™

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.

The Third Annual Women In Law Leadership Lecture: A Fireside Chat Featuring Amy Barasch, Esq., Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.

St. Mary's Law Journal

The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.

This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused …

Inherent Judicial Authority: A Study In Creative Ambiguity, Charles M. Yablon

Cardozo Law Review

No abstract provided.

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …

Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar

Faculty Scholarship

No abstract provided.

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

The Jury Veto, Stephen E. Henderson

Faculty Articles

While the American civic religion is to be distrustful of government, feelings of discontent regarding our systems of criminal investigation and adjudication feel historic. And while those systems are capable of great carnage en route, the endgame is, ultimately, criminal punishment. Yet before punishment can be imposed, every prosecution—and therefore every defendant—is meant to encounter a potential “circuit breaker”: the jury. I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence. By …

Address At The Constitution Day Convocation Of The University Of South Carolina School Of Law, J. Michael Luttig

South Carolina Law Review

This Article is a minimally edited transcript of The Honorable J. Michael Luttig’s Address given on September 15, 2022 at the University of South Carolina School of Law’s Constitution Day Convocation. Judge Luttig served on the United States Court of Appeals for the Fourth Circuit 1991–2006.

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …

Nomos And Nation: On Nation In An Age Of “Populism”, John Valery White

Touro Law Review

Robert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

El Juicio Político O Impeachment En Los Estados Unidos, Robert S. Barker

Law Faculty Publications

I. El origen ingles -- II. La constitución de los estados unidos -- III. El primer caso: Blount -- IV. El caso Chase -- V. El caso Johnson -- VI. El caso Belknap -- VII. La controversia Watergate, 1972-1974 -- VIII. Los casos Clinton y Trump -- IX. Los casos contra jueces de tribunales federales inferiores, 1873-2010 -- X. El caso Walter Nixon -- XI. Cuestiones no resueltas -- XII. Conclusión -- XIII. Bibliografía.

Frenemy Federalism, Scott Bloomberg

University of Richmond Law Review

Federalism scholars have long been fascinated by the unique relationship between the federal government and states that have legalized marijuana. And with good reason. For the past fifty years, Congress has classified marijuana as a Schedule I drug under the federal Controlled Substances Act (“CSA”), deeming the drug to have a high potential for abuse and no accepted medical use. Congress’s aim in establishing Schedule I of the CSA was to “eliminate the market in Schedule I substances.” Thus, possessing, distributing, and manufacturing marijuana are federally illegal. Congress’s objective notwithstanding, over two-thirds of the states (and territories) have legalized marijuana …

Out Of Sight And Out Of Mind: Criminal Laws Disguised Moral Culpability Requirement, Andrew Ingram

University of Richmond Law Review

Last spring, the Supreme Court of the United States made a little-remarked constitutional ruling in Kahler v. Kansas. Upon casual inspection, Kahler looks like a doctrinal dead-end. The petitioner asked the Supreme Court to recognize a due process right for mentally ill defendants to raise the M’Naghten right-and-wrong test of insanity, and the Court said, “No.” The petitioner’s failure notwithstanding, Kahler is not a barren vine. On the contrary, it is heavy-laden with new doctrinal insights for criminal law scholars.

The case deserves a thorough look—not for what it can teach us about constitutional contentions that the Court has …

Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin

Faculty Scholarship

In her nearly thirty years on the United States Supreme Court, Justice Ruth Bader Ginsburg issued momentous decisions and significant dissents concerning constitutional guarantees of equality. She is best known for her leadership – as an advocate, scholar, judge, and justice – on issues of gender discrimination. Although one might expect related commitments to civil liberties to shape cases concerning the criminal justice process, Justice Ginsburg’s mark on constitutional criminal procedure appears comparatively faint.

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

Changemakers: Master Of Studies In Law: 'Law Isn't A Foreign Language Anymore', Roger Williams University School O Law

Life of the Law School (1993- )

No abstract provided.

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

"You Should Have Known:" The Need For Evidentiary Notice Requirements In Immigration Court, Marisa Moore Apel

University of Cincinnati Law Review

No abstract provided.

A Personal Journey Through The Rule Of Law In The South Pacific, W. K. Hastings

Judicature International

No abstract provided.

Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride

University of Cincinnati Law Review

In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …

An Open Governor’S Seat, Open Constitutional Question, And The Need For An Answer, Samuel Steele Mclelland, James R. Baxter

Arkansas Law Notes

Another election cycle always means a renewal of fresh lawsuits and legal questions, and 2022 is no exception. the announcement of Sarah Huckabee Sanders’s run for Governor of Arkansas reignites an interesting aspect of Arkansas’s Constitution: must a candidate for Governor live in the State of Arkansas for seven consecutive years, immediately preceding taking office? A final ruling by the Arkansas Supreme Court will give clarity and stability going forward for the most important elected position in the state.

The Iron Rule, Jacob Bronsther, Guha Krishnamurthi

Cardozo Law Review

No abstract provided.