Constitutional Law Commons^™

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

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In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the …

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

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This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

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The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

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This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

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The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to …

Government Speech 2.0, Helen Norton, Danielle Keats Citron

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New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine--which recognizes "government speech" as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint--only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the …

Shining A Light On Democracy's Dark Lagoon, Helen Norton

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Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices. The Fourth Circuit, in …

Lessons From Mazibuko: Persistent Inequality And The Commons, Daria Roithmayr

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No abstract provided.

A 'Ho New World: Raced And Gendered Insult As Ersatz Carnival And The Corruption Of Freedom Of Expression Norms, Lolita Buckner Inniss

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Carnivalization, a concept developed by literary theorist Mikhail Bakhtin and later employed in broad social and cultural contexts, is the tearing down of social norms, the elimination of boundaries, and the inversion of established hierarchies. It is the world turned upside down. Ersatz carnival is a pernicious, inverted form of carnival, one wherein counter-discourses propounded by outsiders are appropriated by elites and frequently redeployed to silence and exclude those same outsiders. The use of the slur "'ho" by gangsta' rappers in the performance of songs that articulate a vision of urban culture is an example of carnivalization. Thus, when words …

Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss

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No abstract provided.

"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks

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This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

The Courts Under President Obama, Scott A. Moss

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No abstract provided.

Telluride's Tale Of Eminent Domain, Home Rule, And Retroactivity, Richard B. Collins

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Telluride, Colorado, won an eminent domain battle with San Diego billionaire Neal Blue, but only after paying his price and his attorney's fees. The town passed a condemnation ordinance by popular initiative to take 572 acres adjacent to the town. The landowner obtained a state statute intended to forbid the town's action. The trial judge held the statute invalid under Colorado's constitutional home rule amendment. Town officials negotiated a compromise with the landowner, but its voters rejected it. The valuation trial was moved to a neighboring county much more favorable to the landowner, and the jury gave him his full …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

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No abstract provided.

Colorado V. Connelly: What Really Happened, William T. Pizzi

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In 1986, the Supreme Court decided Colorado v. Connelly, a landmark case in due process and fifth amendment law. The case began when Francis Barry Connelly approached a police officer on the street in downtown Denver to confess to having killed a young woman several months earlier in southwest Denver. Because Connelly was suffering from acute schizophrenia and was hearing auditory hallucinations commanding him to confess, state courts suppressed his statements to the police on the grounds (1) that his statements before arrest were involuntary and inadmissible under the due process clause and (2) those statements post-arrest could not …

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

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This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson

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In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …

Them That Has, Gets, Daria Roithmayr

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No abstract provided.

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

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No abstract provided.

The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines

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As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates' strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe's privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of limited …

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

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Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

The Measure Of Government Speech: Identifying Expression's Source, Helen Norton

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States and other governmental bodies increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a public entity claims that same speech as its own, along with the ability to control its content.

In suggesting a framework for approaching these problems, this Article starts by examining the theoretical and practical justifications for insulating …

Government Workers And Government Speech, Helen Norton

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This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Popular Election Of The President: Using Or Abusing The Electoral College?, Jennifer S. Hendricks

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No abstract provided.

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

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No abstract provided.

Essentially A Mother, Jennifer S. Hendricks

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This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent.

The article first discusses the "unwed father cases." Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological …

"Failure To Pay Any Poll Tax Or Other Tax": The Constitutionality Of Tax Felon Disenfranchisement, Sloan G. Speck

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If the government convicts a citizen under the tax evasion provisions of the Internal Revenue Code, some state disenfranchisement laws preclude that citizen — now a felon — from voting. In this sense, the right to vote depends on the payment of federal income taxes. The Constitution's Twenty-Fourth Amendment, however, guarantees that the federal franchise “shall not be denied or abridged... by reason of failure to pay any poll tax or other tax.” If “other tax” includes income taxes, the text of the Twenty-fourth Amendment appears to prohibit the disenfranchisement of citizens convicted of tax felonies. This Comment argues that …

The Incompatibility Principle, Harold H. Bruff

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No abstract provided.

Foreword, Richard B. Collins

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No abstract provided.

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

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No abstract provided.