Constitutional Law Commons^™

Finding Nino: Justice Scalia's Confrontation Clause Legacy From Its (Glorious) Beginning To (Bitter) End, Joëlle Anne Moreno Professor

Akron Law Review

Until very recently, Justice Scalia has steered the Court’s modern confrontation jurisprudence. However, as discussed below, his leadership is increasingly threatened by deep divisions on questions of historical accuracy, constitutional interpretation, and the practical realities of twenty-first century criminal prosecutions.

Judicial Activism’S Effect On Judicial Elections, Nick Fernandes

Student Scholar Symposium Abstracts and Posters

High profile Supreme Court cases have become increasingly commonplace, particularly with the Citizens United court decision granting unprecedented rights to corporations. Many in the media have decried these as examples of increasing “judicial activism”. This trend has trickled down to the state supreme courts as justices have increasingly played a more active role in developing policy. Gay marriage has become legalized in numerous states due to this trend. While public sentiment is unlikely to affect the appointed Supreme Court, it could have a substantial impact on state judicial elections.

This paper will specifically be looking at judicial elections in Kentucky. …

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Remain Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agriculture safety and protect free speech in an evolving food safety landscape.

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

The Commonwealth Of Puerto Rico: Trying To Gain Dignity And Maintain Culture, Arnold Leibowitz

Georgia Journal of International & Comparative Law

No abstract provided.

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh Spitzer

Seattle University Law Review

This Article focuses on the tension between the late-nineteenth century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” …

The Evian Agreements On Algeria And The Lancaster Agreements On Zimbabwe: A Comparative Analysis, O. N. Musamirapamwe

Georgia Journal of International & Comparative Law

No abstract provided.

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

Marquette Law Review

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

Verbal Speech Versus Visual Art: Evidence Of Unequal First Amendment Protection In Right Of Publicity Jurisprudence, Daniel Forman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

Book Review: Nuclear Weapons And Law. Ed. Arthur Selwyn Miller And Martin Feinrider. Westport, Connecticut: Greenwood Press, 1984., Dorinda G. Dallmeyer

Georgia Journal of International & Comparative Law

No abstract provided.

Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock

Catholic University Law Review

The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …

Hijacking Justice: Assessing The Emergency Driven Analysis Of Confrontation Clause Jurisprudence, Steven C. Berlowitz

Cardozo Law Review

No abstract provided.

Immigration - Due Process - The Availability Of Constitutional Safeguards To Detained Cuban Aliens, Garcia-Mir V. Meese, 788 F.2d 1446 (11th Cir. 1986), Cert. Denied, 107 S. Ct. 289 (1986)., Elizabeth G. Marlowe

Georgia Journal of International & Comparative Law

No abstract provided.

Spokeo V. Robins And The Constitutional Foundations Of Statutory Standing, Maxwell Stearns

Faculty Scholarship

In Spokeo v. Robins, the Supreme Court granted certiorari to address the following question: Does Congress have the power to confer standing upon an individual claiming that a privately owned website violated its federal statutory obligation to take specified steps designed to promote accuracy in aggregating and reporting his personal and financial data even if the resulting false disclosures did not produce concrete harm? This somewhat arcane standing issue involves congressional power to broaden the scope of the first of three constitutional standing requirements: injury in fact, causation, and redressability. Although the case does not directly address the prudential …

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Professor Greenawalt's Unfashionable Idea, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Originalism As A Theory Of Legal Change, Stephen E. Sachs

Faculty Scholarship

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

Articles

No abstract provided.

Two Dogmas Of Originalism, Ian C. Bartrum

Scholarly Works

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at …

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the …

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

Originalism And The Rule Of The Dead, Joel Alicea

Scholarly Articles

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism — the theory that the original meaning of the Constitution is binding on today's interpreters — has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.