Constitutional Law Commons^™

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution, Stephen C. Neff

Akron Law Review

This discussion will briefly outline the legal arguments in favour of the secessionist position. The first section will survey four arguments that could, in theory, have been employed but which, in practice, were used either not at all or only marginally. The second section will survey, in greater detail, the principal argument which was advanced in 1860-61: that secession was a lawful remedy available to the Southern states in the face of material breaches of the Constitutional compact of 1787 by the free states. It will be observed that, in this argument, general considerations of natural law and of the …

James Madison And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson

Akron Law Review

The last of the limited-subject interstate gatherings is today the most famous. The Annapolis Convention of 1786 was to focus on “the trade and Commerce of the United States.” Its limited scope induced Madison, who served as a delegate, explicitly to distinguish it from a plenipotentiary convention. For the most part, all of these conventions—today we might call them “task forces”—remained within the scope of their calls. If there was an exception, it was the abortive assembly at Annapolis, and that exception was solely to express the “wish” and “opinion” that another convention be held to consider defects in the …

Still Too Close To Call? Rethinking Stampp's "The Concept Of A Perpetual Union", Daniel W. Hamilton

Akron Law Review

In a classic article in the Journal of American History, which was based on his presidential address to the Organization of American Historians in 1978, the great Civil War historian Kenneth Stampp made the claim that the arguments in favor of the constitutionality of secession made by the Southern states were as strong, if not stronger than the constitutional arguments made, then and now, in opposition to secession. Stampp is to my mind the greatest Civil War historian of the 20th century and his views on secession remain required reading and are cited routinely today. This is not to say …

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.

An Introduction To The Women In Law Symposium, Tracy Thomas

Con Law Center Articles and Publications

This collected symposium gives context and definition to these continuing problems of sex discrimination. The included articles pull back the curtain to provide examples of how and why sex discrimination still exists. The articles go deeper, fleshing out persistent notions of gender as subordinate, exploring the public perception of gender in appearance of femininity and masculinity. They illustrate the tangible legal results of these gendered notions to legal issues as varied as forced sterilization of the mentally disabled, equal employment, or the criminalization of prostitution.

Tying The Knot With A Surname? The Constitutionality Of Japan's Law Requiring A Same Marital Name, Koji Higashikawa

Con Law Center Articles and Publications

The Japanese Supreme Court issued a decision denying married women the right to retain their separate maiden name legally after marriage. It upheld the constitutionality of an old law requiring both marital partners to adopt the same surname. This essay by a Japanese scholar provides insight and explanation into the Supreme Court’s decision.

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Con Law Center Articles and Publications

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control.

This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and …

Tradition, Policy And The Establishment Clause: Justice Kennedy's Opinion In Town Of Greece V. Galloway, Wilson Huhn

Con Law Center Articles and Publications

The great jurisprudential battle that has raged in the Supreme Court for more than a century and the question that our society has struggled with since the advent of the Civil War is whether the Constitution is a command by our ancestors that we retain the same political structures, social hierarchies, and cultural traditions that they had, or whether it reflects ideals of liberty, equality, fairness, and tolerance that they aspired to and that they expected us to reach for. That struggle between rules and standards, doctrine and principles, conventionalism and consequentialism, tradition and policy in the interpretation of the …

Same-Sex Divorce, Tracy A. Thomas

Akron Law Faculty Publications

Same-sex marriage is now legal in seventeen states and sixteen countries. The question increasingly being asked is how these couples can divorce. For those who remain in their home state or in a marriage equality state, the divorce process should be the same as for any other marriage. The problem arises because people are transient; couples often relocate for jobs or family, or they initially traveled out of their home state for the marriage. “In a highly mobile society, state bans on same-sex marriage have in many cases made untying the knot far harder than tying it in the first …

Union And States’ Rights: A History And Interpretation Of Interposition, Nullification, And Secession 150 Years After Sumter, Neil H. Cogan

University of Akron Press Publications

Edited by Neil H. Cogan, who is a well-versed legal scholar of constitutional law, civil rights, and civil and criminal procedures, this volume is a collection of papers on a central issue of governance in the United States; namely, what is the power of the States to object to and cancel Federal law with which they disagree. For eighty-one years, from the ratification of the Constitution to the end of the Civil War, this issue of State power was the central issue of governance. Chapters address the history and legal arguments for three assertions of such State power: interposition, nullification, …

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Akron Law Faculty Publications

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Faculty Publications

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

Martin Welker: Ohio's Unsung Hero, Aaron Boothby

The 39th Congress Project

No abstract provided.

Robert Cumming Schenck: Ohio's Bitter, Fearless Fighter, Devin C. Capece

The 39th Congress Project

No abstract provided.

The Future Interpretation Of The Constitution As A Result Of The Re-Election Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Akron Law Faculty Publications

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

Book Review, Barbara Babcock's Woman Lawyer: The Trials Of Clara Foltz, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.

The Struggle For Gender Equality In The Northern District Of Ohio, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.

Switching To Prophylactic Injunctions, Tracy Thomas

Con Law Center Articles and Publications

This essay highlights the significance of John Golden’s work on patents to the field of Remedies more generally. In his important new article, Injunctions as More (or Less) Than ‘Off Switches’: Patent-Infringement Injunctions’ Scope (Texas Law Review), Golden proves my thesis: prophylactic injunctions are, and should be, common, normal types of equitable relief. His careful and detailed analysis of the type and frequency of injunctions issued in patent infringement cases exposes the myth that prophylaxis is illegitimate. Steeped in details of patent law, Golden’s work nevertheless contributes significantly to the broader transsubstantive questions of the metes and bounds of equitable …

Forward: "War On Women" In Women And The Law, Tracy Thomas

Con Law Center Articles and Publications

This foreword to Women and the Law highlights the dramatic attacks on women's rights over the past year. It summarizes the articles contained in this annual selection of leading scholarship in the field of women's rights. This "greatest hits" collection pulls together academic research of potential interest to litigators and policymakers on issues of reproductive rights, feminism and the family, violence against women, employment, women's healthcare, and feminist legal theory.

Riding Into The Sunset In A "Post-Racial" World: Lessons In Equal Educational Opportunity And College Admissions Schemes In France And The United States, Kristen Barnes

Con Law Center Articles and Publications

The purpose of this paper is to evaluate and compare two strategies designed to promote ethno-racial inclusion that were initiated in France and the United States in the context of higher education. In particular, I examine the Priority Education Agreements Program or CEP, an innovative affirmative action program which was implemented in 2001 by the Sciences Po, one of France’s elite universities, in relation to the Texas Ten Percent Plan that was established in 1997 in the United States by the State of Texas.

Sections I and II of this paper will provide the historical and social contexts in which …

Infinite Hope And Finite Disappointment: The Story Of The First Interpreters Of The Fourteenth Amendment, Elizabeth Reilly

University of Akron Press Publications

Infinite Hope and Finite Disappointment details the aspirations and promises of the 14th Amendment in the historical, legal, and sociological context within which it was framed. Part of the Reconstruction Amendments collectively known as "The Second Founding," the 14th Amendment fundamentally altered the 1787 Constitution to protect individual rights and altered the balance of power between the national government and the states. The book also shows how initial Supreme Court interpretations of the Amendment's reach hindered its applicability. Finally, the contributors investigate the current impact of the 14th Amendment.

Contents Infinite Hope: The Framers as First Interpreters The Antebellum Political …

Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

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 …

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn

Akron Law Faculty Publications

The concept of “popular sovereignty” is not a simple, singular, unified concept; instead, as it has developed in the United States, popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Akron Law Faculty Publications

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Akron Law Faculty Publications

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

Book Review, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.