Constitutional Law Commons^™

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …

Whatever, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

Election Law As Applied Democratic Theory, James A. Gardner

Journal Articles

Democracy does not implement itself; a society’s commitment to govern itself democratically can be effectuated only through law. Yet as soon as law appears on the scene significant choices must be made concerning the legal structure of democratic institutions. The heart of the study of election law is thus the examination of the choices that our laws make in seeking to structure a workable system of democratic self-rule. In this essay, written for a symposium on Teaching Election Law, I describe how my Election Law course and materials focus on questions of choice in institutional design by emphasizing election law’s …

The Federal Judicial Vacancy Crisis: Origins And Solutions, Ryan Shaffer

CMC Senior Theses

This paper examines the causes of the rise in vacancies on the federal courts in recent decades. Under President Barack Obama, the number of vacancies on the federal courts has sharply jumped. This is due to firm opposition by Senate Republicans, who have used the various procedural tools of that body to make it difficult for nominees to get confirmation. This antagonism is the result of a shift in how the parties view the courts and their role in the American political process. The Warren Court's expansion of substantive due process rights increased the Court's powers to the chagrin of …

The Fourth Amendment, Ethan Payne

A with Honors Projects

This projects explains the fourth amendment using skits and a PowerPoint presentation.

Factions For The Rest Of Us, John D. Inazu

Scholarship@WashULaw

This essay responds to essays by Professors Ashutosh Bhagwat, Susan Appleton, and Robert Vischer on my book Liberty’s Refuge: The Forgotten Freedom of Assembly. The essays were presented at a March 2012 discussion hosted by Washington University School of Law that included additional presentations from Gregory Magarian, Bernadette Meyler, Ian MacMullen, and Neil Richards.

I had three objectives in writing Liberty’s Refuge, one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. …

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.

Faith And Fidelity: Originalism And The Possibility Of Constitutional Redemption, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).

Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." …

Liberty's Refuge: The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women's suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions …

Let Presidential Hopefuls Have Their Say, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The announcement by the Presidential Elections Committee (PEC) of the prospective candidates who have been issued certificates of eligibility for the 2011 presidential election in Singapore makes interesting reading for what it does and does not say. The Committee’s decision-making process is also fairly opaque. It is submitted the rules governing the PEC’s task should be reviewed before the next election. At least, it is hoped future Committees will adopt as constitutional conventions the practices of granting hearings to applicants, announcing decisions well ahead of nomination day, and issuing full reasons.

Stereotype Threat In Criminal Interrogations: Why Innocent Black Suspects Are At Risk For Confessing Falsely, Cynthia J. Najdowski

Psychology Faculty Scholarship

Little theoretical attention has been paid to evidence that Blacks are overrepresented in samples of false confessors compared to Whites. One possible explanation is that innocent Black suspects experience stereotype threat in interrogations and that this threat causes Black suspects to experience more arousal, self-regulatory efforts, and cognitive load compared to White suspects. These psychological mechanisms could lead innocent Black suspects to display more nonverbal behaviors associated with deception and, ironically, increase the likelihood that police investigators perceive them as guilty. In response, investigators might engage in more coercive tactics and exert more pressure to confess on Black suspects than …

Executions In America: How Constitutional Interpretation Has Restricted Capital Punishment, Andrea Paone

Pell Scholars and Senior Theses

In upholding the constitutionality of capital punishment, the United States Supreme Court has utilized a strict construction interpretation of the Fourteenth Amendment's Due Process Clause, which has led the opponents of capital punishment to abandon the Due Process approach and look to the Eighth Amendment, for which the justices utilize a loose construction interpretation.

American Constitutional Law, Otis Stephens

College of Law Faculty Scholarship

No abstract provided.

Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran

Law Faculty Scholarship

No abstract provided.

Judicial Reform, Constitutionalism And The Rule Of Law In Zambia: From A Justice System To A Just System, Muna Ndulo

Zambia Social Science Journal

In Zambia it is generally agreed on by all stakeholders that the judicial system needs reform to make it more accountable, independent, and able to deliver justice efficiently and effectively. This article discusses judicial reform in the context of the independence of the judiciary. It tries to unpack the term judicial reform. It argues that for the rule of law and constitutionalism to prevail it is crucial that the judiciary is independent and there is separation of powers between the executive and the judiciary, and legislature and the judiciary. For judges to be personally and substantively independent they need security …

A Machine Made Of Words: Our Incompletely Theorized Constitution, Gregory Brazeal

The University of New Hampshire Law Review

[Excerpt]”Many scholars have observed that the Constitution of the United States can be understood as an example of what Cass Sunstein calls an “incompletely theorized agreement.” The Constitution contains a number of extremely general terms, such as “liberty,” “necessary and proper,” and “due process.” The Framers of the Constitution, it is suggested, did not attempt to specify precisely how each of these principles would operate in every case. On this view, the Constitution is incompletely theorized in the sense of representing “a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.” For example, …

The Mandatory Death Penalty And A Sparsely Worded Constitution, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

It was not unexpected that the Singapore Court of Appeal would reaffirm the constitutionality of the mandatory death penalty for certain forms of drug trafficking in Yong Vui Kong v Public Prosecutor [2010] 3 S.L.R 489. ... The appellant made submissions based on Articles 9(1) and 12(1) of the Constitution, which respectively guarantee rights to life and personal liberty, and to equality before the law and equal protection of the law. This note examines aspects of the Article 9(1) arguments.

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Faculty Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own …

[Features Of Conventional Scholarly Wisdom About The Thirteenth Amendment], Pamela Brandwein

Schmooze 'tickets'

No abstract provided.

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

The Tea Party, The Constitution, And The Repeal Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Given that the Tea Party is a right-of-center movement, it does not take an empiricist to know that most Tea Partiers hold right-of-center views on a variety of issues. This does not mean, however, that the Tea Party movement is about immigration policy or social issues like abortion, any more than the gun-rights movement is about any other beliefs that may be held by a majority of gun-rights advocates. Instead, the Tea Party movement is about two big subjects: first, the undeniable recent surge in national government spending and debt, and second, what Tea Partiers perceive as a federal government …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Powers Of War: President Versus Congress, Jordan D. Santo

CMC Senior Theses

Before the United States Constitution was ratified there was much debate about what war powers the executive and legislative branches should hold. After much deliberation it was decided that the power to declare war would fall under the control of Congress. But as time passed, control over initiating military action began to shift from Congress to the President. This thesis examines the shift of power from the legislature to the President. The thesis explains the difference between a declaration of war, an authorization of force, as well as using the military as a police force. It examines the precedents set …

Searching For Effective And Constitutional Responses To Homegrown Terrorists, Barbara L. Mcquade

Articles

Thank you, Brad, and thank you to the Law Review for inviting me here today. Protecting national security while honoring civil liberties is the greatest challenge of our generation. As a prosecutor, I am charged with protecting national security, and I understand the importance of protecting the public from acts of terrorism. But prosecutors are also sworn to uphold the Constitution. In fact, at the U.S. Attorney's Office, we are also charged with prosecuting violations of civil rights. So in every case, we understand how important it is to protect people's constitutional rights, such as First Amendment rights to free …

Vicki C. Jackson, Constitutional Engagement In A Transnational Era, Melissa A. Waters

Scholarship@WashULaw

This essay reviews and critiques Vicki C. Jackson's book on constitutional engagement and comparative constitutional law.

Over the past decade, the debate over the use of foreign authority in interpreting the U.S. Constitution has fallen prey to an unfortunate “Crossfire” phenomenon, reminiscent of the old (and much maligned) CNN news commentary program. Serious discourse on this important issue has been obscured by an increasingly rancorous public debate in the news media, the blogosphere, and even before Congress. In this Crossfire debate, it seems, everyone must “choose up sides.” So-called “nationalists” deplore even most modest citations to foreign authority in constitutional …

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

The Multiple-Stage Process Of Judicial Review: Facial And As-Applied Constitutional Challenges To Legislation Before The U.S. Supreme Court, Stefanie A. Lindquist, Pamela C. Corley

Scholarship@WashULaw

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the …

Judicial Dialogue In Roper: Signaling The Court’S Emergence As A Transnational Legal Actor? A Response To Professor Mark Tushnet, Melissa A. Waters

Scholarship@WashULaw

Professor Mark Tushnet contends that Roper v. Simmons is consistent with a long line of U.S. Supreme Court precedent utilizing foreign authority in constitutional interpretation. Given this consistency, he asserts that the controversy over Roper, "must rest on something new in constitutional discourse," and finds the, "something new," in two sources: The rise of originalism and renewed, "concern for the place of the United States in the modern international order."

This response essay suggests two additional sources for the controversy over Roper. First is the emerging transnational judicial dialogue among the world's constitutional courts on human rights issues, and the …

Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.

"Plain" meaning, it …