Constitutional Law Commons^™

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Faculty Publications

No abstract provided.

Government Lawyers And The New Deal, Neal Devins

Faculty Publications

No abstract provided.

Order Flow Cases: Jurisdiction, Preemption And Securities Laws; Outside Counsel, Richard L. Stone, Jay Facciolo

Faculty Publications

(Excerpt)

Primary jurisdiction and preemption issues arise in securities class action litigation when alleged violations of state law arise from conduct that is either explicitly or implicitly regulated by the federal securities laws.

These are two distinct theories: one is a matter of administrative law and judicial economy (primary jurisdiction); the other is a matter of constitutional law involving the Supremacy Clause (preemption). To date, there has not been extensive case law involving preemption and the federal securities laws (other than in the blue sky and tender offer areas) and there has been almost no case law on primary jurisdiction …

The New Federalism, Richard C. Reuben

Faculty Publications

the 10th Amendment was something they noted for the bar exam and then promptly forgot about. But for many conservative lawyers and politicians, the 10th Amendment- which reserves to the states all powers not given to the federal government-has been anything but academic. For them, it embodies the founders' promise for a nation in which the states and federal government are near-equal partners. And they have fought long and hard to give the amendment its proper due. As the rise of House Speaker Newt Gingrich, R-Ga., and his Contract with America attest, their day may have finally come. Today, federalism, …

Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Consensus Of The Governed: The Legitimacy Of Constitutional Change, Raymond Shih Ray Ku

Faculty Publications

This Article argues that, contrary to current practices, constitutional change is legitimate only when it commands the unanimous support of the people, or, because unanimous support is practically impossible, when it is accomplished through procedural devices (i.e., representation, ratification, and supermajority support) that safeguard minority interests in an effort to determine the public good and approximate the will of the people as a whole. Constitutional change is illegitimate when it represents only the will of a portion of the people. This Article attempts to answer the question of what makes a constitution or a constitutional amendment legitimate, and provides specific …

A Catalogue Of Judicial Federalism In The United States, Thomas E. Baker

Faculty Publications

No abstract provided.

Legitimacy Of The Constitutional Judge And Theories Of Interpretation In The United States, William B. Fisch, Richard S. Kay

Faculty Publications

The Legitimacy of the Constitutional Judge and Theories of Interpretation in the United States The paper addresses the sources of legitimacy of a judge exercising the power to declare acts of government invalid on constitutional grounds, and their relationship to theories of interpretation of the constitutional texts.

Note, Give Me Liberty Or Give Me Silence: Taking A Stand On Fifth Amendment Implications For Court-Ordered Therapy Programs, Jessica Wilen Berg

Faculty Publications

No abstract provided.

United States Supreme Court: 1993-94 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Public Forum Doctrine And The Perils Of Categorical Thinking: Lessons From Lamb's Chapel, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In recent years, the intersection of the Religion and Speech Clauses of the First Amendment has become increasingly controversial particularly in the context of public schooling. Religious group meetings, the distribution of religious literature, the discussion of religious themes, and the recitation of prayers at graduation ceremonies have all forced the courts to weigh and re-weigh the right to individual speech against the responsibility of the state to stay within the bounds of Establishment Clause doctrine. Several legal and political factors have fueled this debate. Although the Supreme Court has reaffirmed on several occasions the unconstitutionality of organized prayer …

The Second Amendment And The Personal Right To Arms, William W. Van Alstyne

Faculty Publications

For many years, the Second Amendment was politely ignored, or summarily dismissed, by America's legal academy. In recent years, however, more and more law professors have begun taking the Second Amendment seriously. Professor William Van Alstyne, one of the nation's most respected Constitutional law professors, and the author of a leading Constitutional law casebook; offers his contribution in this essay. Van Alstyne suggests that the Second Amendment means exactly what it says: that individual citizens have a right, not merely a privilege, to own and carry firearms. He also commends the National Rifle Association for its constructive role as a …

A Tale Of Two Textualists: A Critical Comparison Of Justices Black And Scalia, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Rediscovering Nonjusticiability: Judicial Review Of Impeachments After Nixon, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins

Faculty Publications

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the …

Avoiding Takings “Accidents”: A Torts Perspective On Takings Law, Eric Kades

Faculty Publications

Viewing the Takings Clause of the Fifth Amendment as a form of insurance appeals to our intuition. The government, like fire, does not often "take" property, but when faced with extraordinary risk property owners naturally desire compensation. Recent scholarship, however, has dissolved the attractiveness of this perspective. This literature, through economic analysis, claims that the Takings Clause should be repealed and replaced with private takings insurance. This is the "no-compensation" result. This article argues that the insurance-based understanding of the just compensation requirement can be preserved without reaching the surprising no-compensation result. The intuitive appeal of understanding the Takings Clause …

Through The Looking Glass: What Abortion Teaches Us About American Politics, Neal Devins

Faculty Publications

No abstract provided.

The University In The Manner Of Tiananmen Square, William W. Van Alstyne

Faculty Publications

No abstract provided.

Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins

Faculty Publications

No abstract provided.

“Thirty Pieces Of Silver” For The Rights Of Your People: Irresistible Offers Reconsidered As A Matter Of State Constitutional Law, William W. Van Alstyne

Faculty Publications

No abstract provided.

Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein

Faculty Publications

No abstract provided.

Virtues (And Limits) Of Shared Values: The Fourth Amendment And Miranda's Concept Of Custody, Richard A. Williamson

Faculty Publications

Miranda only protects suspects who the police subject to custodial interrogation. The concept of custody is tethered to the Fifth Amendment privilege against self-incrimination; thus, to render a suspect in custody, law enforcement officials must subject the suspect to a compelling environment that tends to undermine that privilege. In this article, Professor Richard A. Williamson examines the application of Miranda to Terry stops. He reviews the impact of the Beheler and Berkemer decisions, which held that suspects who officials stop based on reasonable suspicion, as opposed to suspects who officials arrest, are not entitled to Miranda warnings. Professor Williamson generally …

The Constitutional Right To Defense Experts, Paul C. Giannelli

Faculty Publications

No abstract provided.

Defensible Fees, State Action, And The Legacy Of Massive Resistance, Jonathan L. Entin

Faculty Publications

The Supreme Court of Virginia recently upheld the validity of a whites-only provision in an educational trust. The decision in Hermitage Methodist Homes of Virginia, Inc. v. Dominion Trust Co., would be noteworthy for that reason alone. It is important for three other reasons, however. First, this was not an ordinary property dispute; it arose directly from Brown v. Board of Education. The restriction at issue applied to a segregation academy in Prince Edward County, the most recalcitrant of the defendants in Brown. The academy was established to provide private education for whites when the county closed its public schools …

What Do You Think About The Twenty-Seventh Amendment?, William W. Van Alstyne

Faculty Publications

No abstract provided.

Report Of The Coalition For A New America: Platform Section On Communications Policy, Rodney A. Smolla

Faculty Publications

No abstract provided.

Information, Imagery, And The First Amendment: A Case For Expansive Protection Of Commercial Speech, Rodney A. Smolla

Faculty Publications

No abstract provided.

"Accidental" Shootings As Fourth Amendment Seizures, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Freedom Of Speech For Libraries And Librarians, Rodney A. Smolla

Faculty Publications

Noting the recent bicentennial of the First Amendment to the United States Constitution, Professor Smolla considers the role of librarians in opposing censorship. He proposes a new principle of "professionalism" to establish the librarian's role, and discusses the principle in light of the Supreme Court's decision in Board of Education v. Pico.

Ethnic Identity And Constitutional Design For Africa, Alemante G. Selassie

Faculty Publications

No abstract provided.