Constitutional Law Commons^™

Regulating The Regulators: The Impact Of Fda Regulation On Corporations' First Amendment Rights, 39 J. Marshall L. Rev. 95 (2005), Lisa M. Fealk-Stickler

UIC Law Review

No abstract provided.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

Death By A Thousand Signatures: The Rise Of Restrictive Ballot Access Laws And The Decline Of Electoral Competition In The United States, Oliver Hall

Seattle University Law Review

This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law …

The Nyse As State Actor?: Rational Actors, Behavioral Insights & Joint Investigations, Steven J. Cleveland

American University Law Review

No abstract provided.

Beyond The Conventional Establishment Clause Narrative, Richard Albert

Seattle University Law Review

The article reviews of jurisprudence offers a systematic look at every Establishment Clause case to have reached the docket of the United States Supreme Court since 1947. That year is of particular significance, for it marks the incorporation of the Establishment Clause, which the Court articulated in its influential establishment case, Everson v. Board of Education. Through the intervening years there have been a total of forty-six other cases-forty-seven in total-in which establishment issues constituted the core legal quandary. The article poses two questions as it reviews the Court's opinion in each suit: (1) In contemplating the meaning of …

Violating The Inviolable: Firearm Industry Retroactive Exemptions And The Need For A New Test For Overreaching Federal Prohibitions, 38 J. Marshall L. Rev. 955 (2005), James L. Daniels

UIC Law Review

No abstract provided.

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

"Meet The New Boss": The New Judicial Center, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …

Habeas Corpus: Expired Conviction, Expired Relief: Can The Writ Of Habeas Corpus Be Used To Test The Constitutionality Of A Deportation Based On An Expired Conviction?, Joshua D. Smith

Oklahoma Law Review

No abstract provided.

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

Public Availability Or Practical Obscurity: The Debate Over Public Access To Court Records On The Internet, Arminda Bradford Bepko

NYLS Law Review

No abstract provided.

Hamdi Meets Youngstown: Justice Jackson's Wartime Security Jurisprudence And The Detention Of Enemy Combatants, Sarah H. Cleveland

Faculty Scholarship

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution – that "Eighteenth-Century sketch of a government hoped for" – struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

The Perverse Paradox Of Privacy, Gary L. Mcdowell

Jepson School of Leadership Studies articles, book chapters and other publications

The most recent effort of the Supreme Court of the United States to define the judicially created constitutional right to privacy has demonstrated once again why that contrived right poses such a pronounced threat to constitutional self-government. In writing for the majority in Lawrence v. Texas (2003) to overrule a case of only seventeen years' standing that allowed the states to prohibit homosexual sodomy, Justice Anthony Kennedy insisted that the idea of liberty in the Constitution's due process clauses is not limited to protecting individuals form "unwarranted governmental intrusions into a dwelling or other private places" but has "transcendent dimensions" …

Reconciling Data Privacy And The First Amendment, Neil M. Richards

Scholarship@WashULaw

This article challenges the First Amendment critique of data privacy regulation–the claim that data privacy rules restrict the dissemination of truthful information and thus violate the First Amendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes by constitutionalizing information policy. Rejection of the First Amendment critique is justified on three grounds. First, the critique mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this article suggests that speech restrictions in a wide variety of commercial contexts have never been thought to trigger heightened First Amendment scrutiny, refuting …

Rescuing Federalism After Raich: The Case For Clear Statement Rules, Thomas W. Merrill

Faculty Scholarship

The Rehnquist Court's federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court's decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles …

Supermajority Rules And The Judicial Confirmation Process, John O. Mcginnis, Michael B. Rappaport

Cardozo Law Review

No abstract provided.

Constitutional Law As Political Spoils, William P. Marshall

Cardozo Law Review

No abstract provided.

Symposium: Feminist Theory And The Erosion Of Women's Reproductive Rights: The Implications Of Fetal Personhood Laws And In Vitro Fertilization, Lisa Mclennan Brown

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith

University of San Diego Public Law and Legal Theory Research Paper Series

This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk

Articles

Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …

Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson

ExpressO

The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which …

Curriculum Development At A New Law School: Dismantling The Walls Of Separation, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus

University of San Diego Public Law and Legal Theory Research Paper Series

“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis

University of San Diego Public Law and Legal Theory Research Paper Series

In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …