Constitutional Law Commons^™

Gps Monitoring May Cause Orwell To Turn In His Grave, But Will It Escape Constitutional Challenges? A Look At Gps Monitoring Of Domestic Violence Offenders In Illinois, 43 J. Marshall L. Rev. 845 (2010), Mary Ann Scholl

UIC Law Review

No abstract provided.

The Hobbs Act Through The Rivera-Rivera Looking Glass: A Mere Intrusion Upon Basic Fundamental Federalism Principles?, 44 J. Marshall L. Rev. 237 (2010), Patrick Goodwin

UIC Law Review

No abstract provided.

Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman

Faculty Publications

Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a "mismatch " between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S. C. §S 1983 and Bivens, …

Second-Class Citizenship: The Tension Between The Supremacy Of The People And Minority Rights, 43 J. Marshall L. Rev. 963 (2010), Adam H. Morse

UIC Law Review

No abstract provided.

Volume 6 Issue 2

The Modern American

No abstract provided.

Equitable Balancing In The Age Of Statutes, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

Congressional End-Run: The Ignored Constraint On Judicial Review, Luke M. Milligan

Georgia Law Review

This Article identifies an untended connection between
the research of legal academics and political scientists. It
explains how recent developments in constitutional theory,
when read in good light, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional

interpretationfor that of the Court, but through a different
decision which cannot, as a practical if not legal matter,
be invalidated by the Court. End-runs come in several …

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …

The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, Ernest A. Young

Faculty Scholarship

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality.

This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil and Bill …

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

Regulating Cyberharassment: Some Thoughts On Sexual Harassment 2.0, Helen Norton

Publications

No abstract provided.

In The Manner Prescribed By The State: Potential Challenges To State-Enforced Hospital Limitations On Childbirth Options, Krista Stone-Manista

Cardozo Journal of Equal Rights & Social Justice

The article argues that hospital bans on vaginal births after cesarean (VBAC) infringe upon women's legal and constitutional rights, violating principles of autonomy and equality. These bans are not only medically unnecessary but also undermine international human rights standards that protect women's decisional autonomy in healthcare. The analysis posits that such bans discriminate against women and set a dangerous precedent for state and medical control over women's bodies during pregnancy.

Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill

Faculty Scholarship

We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between "originalists" and "nonoriginalists". In the statutory arena, we have a three-way battle between "textualists," "intentionalists", and "pragmatists." A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the Practice of interpretation. Real world interpreters – to a person – deploy a variety of interpretative methods when they seek to resolve …

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …

Legal Obligations: The Proper Role Of White House Lawyers, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

An opinion issued on Aug. 1, 2002, by Assistant Attorney General Jay S. Bybee of the Department of Justice’s Office of Legal Counsel held that the federal statute that makes it a crime to commit torture outside the United States should not be read to “apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” The opinion further concluded that if the statute did criminalize interrogations ordered by the president, it was unconstitutional.

The memorandum, which has become known as the “torture memo,” figures prominently in the ongoing public debate about whether there should be …

The Same-Sex Future, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

States Of Resistance: The Real Id Act And The Limits Of Federal Deputization Of State Agencies In The Regulation Of Non-Citizens, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

The goal of this Article is to discuss the justiciability of issues arising under immigration federalism by examining the constitutionality of the REAL ID Act. Part I discusses states' authority over non-citizens and the history of "immigration federalism" jurisprudence. Part II explores key provisions of the REAL ID Act, the WHTI, and similar attempts by the federal government to deputize states to engage in citizenship-policing and immigration enforcement. It describes the acute social and economic segregation that the denial of driver's licenses to non-citizens engenders, and examines a number of theories that attempt to capture the impact of the current …

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …

New Groups And Old Doctrine: Rethiking Congressional Power To Enforce The Equal Protection Clause, William D. Araiza

Faculty Scholarship

No abstract provided.

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

Ways To Change: A Reevaluation Of Article V Campaigns And Legislative Consitutionalism, Mary Ziegler

Scholarly Publications

Recent scholarship has convincingly shown that social movements shape constitutional law, and vice versa. To date, most theories study alternatives to formal constitutional amendments or consider the proper role for the courts in influencing the development of social movements. In this Article, however, I approach the question of constitutional change from the standpoint of social movements that oppose a constitutional decision. What tools are available to a movement seeking to change the meaning of a decision? What are the advantages or disadvantages of pursuing an Article V amendment, of codifying a favorable constitutional interpretation by statute, or beginning a litigation …

Which Is To Be Master, The Judiciary Or The Legislature? When Statutory Directives Violate Separation Of Powers, Linda Jellum

Articles

Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation. Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after …

Saul Alinsky And The Litigation Campaign To Win The Right To Same-Sex Marriage, 42 J. Marshall L. Rev. 643 (2009), Gerald N. Rosenberg

UIC Law Review

No abstract provided.

You Can Move In But You Can't Stay: To Protect Occupancy Rights After Halprin, The Fair Housing Act Needs To Be Amended To Prohibit Post-Acquisition Discrimination, 42 J. Marshall L. Rev. 751 (2009), Scott N. Gilbert

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

Vindicating The Matriarch: A Fair Housing Act Challenge To Federal No-Fault Evictions From Public Housing, Melissa A. Cohen

Michigan Journal of Gender & Law

Pearlie Rucker, sixty-three years old, had been living in public housing in Oakland, California for thirteen years. Ms. Rucker lived with her mentally disabled adult daughter, Gelinda, as well as two grandchildren and one great-grandchild. Ms. Rucker regularly searched Gelinda's room for signs of drugs, and had warned Gelinda that any drug activity on the premises could result in eviction. Nevertheless, Gelinda was caught with drugs three blocks from the apartment. Despite the fact that Ms. Rucker had no knowledge of Gelinda's drug activity, and in fact had been carefully monitoring what happened in her apartment, the Oakland Housing Authority …

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Faculty Scholarship

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due?

This Article seeks to …

Title Vi Disparate Impact Claims Would Not Harm National Security - A Response To Paul Taylor, 46 Harv. J. On Legis. 503 (2009), Michael T. Kirkpatrick, Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor's assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress's original intent, and argue that …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

Rebalancing The Scales: Restoring The Availability Of Disparate Impact Causes Of Action In Title Vi Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.