Constitutional Law Commons^™

Members Only - United States V. Rayburn House Office Building, Room 2113: The Speech Or Debate Clause, The Separation Of Powers And The Testimonial Privilege Of Preemptive Nondisclosure, John D. Friel

Villanova Law Review (1956 - )

No abstract provided.

Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian

Working Paper Series

Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron’s approach. In this article, Professor Magarian defends Barron’s case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …

A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan

Working Paper Series

A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes …

The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation Enhancing Review, Gregory P. Magarian

Working Paper Series

No abstract provided.

Interpreting Immunity, Chaim Saiman

Working Paper Series

This paper offers an examination and critique of the Supreme Court’s doctrine of qualified immunity—the immunity from constitutional tort liability granted to government officials in cases in which the tort was not “clearly established” by prior case law. Currently, courts must engage in a two-pronged inquiry: first, whether the official’s conduct was unconstitutional, and second, whether the unconstitutionality was clearly established. This paper argues that while the first question presents a standard case of common law interpretation and analysis, the second inquiry forces courts to approach the body of constitutional tort law as if it were a legislated code. However, …

Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan

Working Paper Series

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They …

The Federalist And The Lessons Of Rome, Louis J. Sirico Jr.

Working Paper Series

Since the time of the Constitution’s framing, our intellectual canon has shifted so that the classical era is no longer central to our learning. This shift may impede our understanding of the Framers and their work. We may fail to grasp a historical analogy and, even more, fail to appreciate the full meaning of a core document in our history. This Article assists today’s reader in gaining the knowledge necessary for an informed understanding of The Federalist’s references to ancient Rome. The Article explains each significant reference to Rome by providing a richly textured historical background for the reference. The …

Which Comes First In Federal Court, The Chicken Or The Baby Chicks: The Unavailability Of Federal Remedies For Spousal Consortium Claims Under 42 U.S.C. Section 1983, Michelle N. Ferreri

Villanova Law Review (1956 - )

No abstract provided.

Subsidiary And Religious Establishments In The United States Constitution, Kyle Duncan

Villanova Law Review (1956 - )

No abstract provided.

Hammering In Screws: Why The Court Should Look Beyond Summary Judgment When Resolving Section 1983 Qualified Immunity Disputes, Teressa E. Ravenell

Villanova Law Review (1956 - )

No abstract provided.

Why The Supreme Court Lied In Plessy, David S. Bogen

Villanova Law Review (1956 - )

No abstract provided.

The Doubtful Validity Of Victim-Specific Libel Laws, Nat Stern

Villanova Law Review (1956 - )

No abstract provided.

Original Intent In The First Congress, Louis J. Sirico Jr.

Working Paper Series

Most of the literature on this country’s Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian

Working Paper Series

In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

You’Re So Vain, I’Ll Bet You Think This Song Is About You, Joseph W. Dellapenna

Working Paper Series

Dispelling the Myths of Abortion History covers over 1,000 years of abortion history in England and America, with special emphasis on the nineteenth and twentieth centuries. It presents an accurate and thoroughly fresh look at that history, reaching several unorthodox conclusions without taking sides on the merits of the abortion debate. The true history of abortion in England and America is important because Justice Harry Blackmun, drawing on the work of law professor Cyril Means, structured the argument of the majority in Roe v. Wade around the history of abortion laws. Means’ argument was later buttressed by the work of …

Considering Standing, Sincerity, And Antidiscrimination, Chapin C. Cody

Working Paper Series

This Article will establish that an unrecognized norm, the “norm of sincerity,” is an implicit factor in the standing analysis in a certain class of equal protection cases. That class of cases includes equal protection claims where 1) courts have applied the “able and ready to compete” test to determine a plaintiff’s injury in fact, and where 2) the plaintiff has complained about discriminatory access to limited government resources. In those cases, a plaintiff cannot demonstrate injury in fact sufficient to meet Article III standing unless she shows that she sincerely intends to use the benefits at stake in the …

Disrobed: The Constitution Of Modesty, Anita L. Allen

Villanova Law Review (1956 - )

No abstract provided.

Context Is King: A Perception-Based Test For Evaluating Government Displays Of The Ten Commandments, Nathan P. Heller

Villanova Law Review (1956 - )

No abstract provided.

Jurisdiction Stripping In Three Acts: A Three String Serenade, Caprice L. Roberts

Villanova Law Review (1956 - )

No abstract provided.

Deliberate Indifference Or Not: That Is The Question In The Third Circuit Jail Suicide Case Of Woloszyn V. Lawrence County, Shevon I. Scarafile

Villanova Law Review (1956 - )

No abstract provided.

Endangered Statute - The Current Assault On The Endangered Species Act, Philip Weinberg

Villanova Environmental Law Journal (1991 - )

No abstract provided.

In Search Of A Conservative Vision Of Constitutional Privacy: Two Case Studies From The Rehnquist Court, Mark C. Rahdert

Villanova Law Review (1956 - )

No abstract provided.

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

Working Paper Series

Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent – the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates …

Nonestablishment Under God - The Nonsectarian Principle, Steven D. Smith

Villanova Law Review (1956 - )

No abstract provided.

Is The Solomon Amendment F.A.I.R. - Some Thoughts On Congress's Power To Impose This Condition On Federal Spending, John C. Eastman

Villanova Law Review (1956 - )

No abstract provided.

The Manacled Octopus: The Unitary Executive And Epa Enforcement Involving Federal Agencies, William C. Tucker

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Congress, Cave Bugs, Courts And The Commerce Clause: Did The Fifth Circuit Figure Out How To Regulate Intrastate Activity Under The Endangered Species Act, John Gregory Koch

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Collection Due Process Rights: A Misstep Or A Step In The Right Direction?, Leslie Book

Working Paper Series

This article defends one of the more controversial parts of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 98) the collection due process (CDP) provisions. CDP gives taxpayers the right to independent administrative and judicial review of IRS decisions to use its awesome administrative collection powers, powers that have long made the IRS a feared creditor.

Prior to CDP’s enactment, the IRS had the power to collect taxes from taxpayers without judicial review of administrative collection determinations. This power, atypical for creditors which often must get judicial approval for summary collection action, led many observers to …

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Working Paper Series

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection – which the article contends it is – …