Constitutional Law Commons^™

Laws Of Image: Privacy And Publicity In America, Samantha Barbas

Books

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights. Laws of Image tells the story of how Americans came …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Journal Articles

The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining Obergefell v. Hodge’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I …

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …

Traditional Cultural Expressions And The U.S. Constitution, Alexander Bussey

Buffalo Intellectual Property Law Journal

No abstract provided.

The Speedy Trial Right And National Security Detentions: Critical Comments On United States V. Ghailani, Anthony O'Rourke

Journal Articles

This article reviews the decision of the United States Court of Appeals for the Second Circuit to uphold the conviction and sentence of Ahmed Khalfan Ghailani, the sole Guantánamo detainee to have been transferred to the United States for trial. Ghailani was captured nearly five years before his arraignment and argued that his constitutional right to a speedy trial was violated by the delay. The article contends that, in rejecting Ghailani’s argument, the Second Circuit distorted the doctrinal framework governing speedy trial claims and mischaracterized the interests that the speedy trial right is intended to protect. The article also explores …

Remedial Discretion In Constitutional Adjudication, John M. Greabe

Buffalo Law Review

No abstract provided.

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

Journal Articles

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills …

Presidential Politics As A Safeguard Of Federalism: The Case Of Marijuana Legalization, David S. Schwartz

Buffalo Law Review

No abstract provided.

Federalism And Subnational Political Community, James A. Gardner

Journal Articles

No abstract provided.

Review Of Constitutional Dynamics In Federal Systems: Sub-National Perspectives, Edited By Michael Burgess And G. Alan Tarr, James A. Gardner

Book Reviews

No abstract provided.

Review Of Federal Dynamics: Continuity, Change, And The Varieties Of Federalism, Arthur Benz And Jorg Broscheck, Eds. (2013), James A. Gardner

Book Reviews

No abstract provided.

The Story Of Prudential Standing, S. Todd Brown

Journal Articles

Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner

Journal Articles

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one …

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner

Journal Articles

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now …

Collaborative Departmentalism, Matthew Steilen

Journal Articles

This article examines the effect of departmentalism on presidential compliance with constitutional law. Most commentators agree that departmentalism weakens the influence of courts in the determination of constitutional meaning and the control of non-judicial actors. The article takes a different view. It defines “moderate departmentalism” as the authority of the President to refuse to adopt a constitutional interpretation announced by the Supreme Court. Drawing on ideas developed in the literature on “new governance” and administrative law, it then argues that moderate departmentalism increases the capacity of the federal courts to control presidential conduct.

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

Commentary: Pleau-Sharing, Jonah J. Horwitz

The Docket

In light of recent debate about the proper roles of federal and state governments, Jonah J. Horwitz laments how little attention has been paid to federal encroachment on the prosecution of commonplace crimes, specifically as it pertains to the death penalty controversy in United States v. Pleau.

The Erosion Of Federal Common Law: Anticipatory Delegation In American Electric Power Company V. Connecticut, Paul Winters

Buffalo Environmental Law Journal

Eleven plaintiffs brought a common law action, seeking injunctive relief against the six largest American producers of greenhouse gases. Because the EPA had not yet promulgated regulations governing the production of greenhouse gases, the Second Circuit Court of Appeals held that federal law had not displaced plaintiffs ' common law claim. The Supreme Court reversed, holding that even though regulations had not been promulgated, EPA occupied the field nevertheless. The decision marks an extension of the regulatory displacement of federal common law to regulations that are merely anticipated Such extension, or "anticipatory delegation, " represents an unacceptably large incursion into …

Theorizing American Freedom (Reviewing Aziz Rana, The Two Faces Of American Freedom (2010)), Anthony O'Rourke

Book Reviews

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion and …

Michael S. Greve's The Upside-Down Constitution (Book Review), James A. Gardner

Book Reviews

No abstract provided.

The Power To Tax Is The Power To Foreclose: Reuniting Law And Logic In Tribal Immunity From Suit, Mary E. Saitta

Buffalo Law Review

No abstract provided.

Constitutional Gaps In Bankruptcy, S. Todd Brown

Journal Articles

Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits …

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 …

Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen

Book Reviews

This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss …

The Solitary Confinement Of Juveniles In Adult Jails And Prisons: A Cruel And Unusual Punishment?, Anthony Giannetti

Buffalo Public Interest Law Journal

No abstract provided.

When Push Comes To Shove: Mandatory Immunization In Times Of Pandemic-Type Emergencies, Philip P. Houle, Suzanne R. Houle

Buffalo Public Interest Law Journal

No abstract provided.

Property, Liberty, And The Rights Of The Community: Lessons From Munn V. Illinois, Paul Kens

Buffalo Public Interest Law Journal

When considering the extent to which the United States Constitution places a limit on government regulation of business, today's historians and constitutional theorists treat the question as a matter of balancing economic liberty or property rights against government power. Moreover, modem scholars commonly maintain that this balancing formula represents the predominant tradition in constitutional history. Tracing it back to the tenants of Jacksonian democracy that emphasized distrust of government, they imply that constitutional history has developed as a straight line: always with an emphasis on individual liberty and always with a presumption that entrepreneurial liberty should be favored over governments' …