Constitutional Law Commons^™

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

Against Freedom Of Commercial Expression, Tamara R. Piety

ExpressO

An article that announces itself in the title as “against freedom” has a heavy burden of persuasion to carry. At this time and in this place, it seems almost un-American to be “against freedom,” (however much our civil liberties have in fact been circumscribed in recent years). Nevertheless, the most significant word in the title is not “against” or “freedom,” but “commercial.” Conventional wisdom in the First Amendment area would have it that there is no meaningful basis on which to distinguish between commercial speech and other speech for purposes of the First Amendment. And in recent years the courts …

The Bureaucratic Due Process Of Government Watch Lists, Peter M. Shane

ExpressO

Watch lists have become increasingly important tools for law enforcement and the protection of homeland security since the terrorist attacks of September 11, 2001,. These lists, however, pose dangers that innocent persons may be burdened either because they are included on such lists without justification or because they share a name with another individual who is appropriately listed. Our public law traditionally addresses this sort of risk through some redress-oriented scheme of due process that allows individuals alleging improper treatment to seek administrative and judicial relief from the error they assert in their particular case. Such an approach is inadequate …

An Analysis Of The Contemporary Role Of Social Science In The Law: The Case Of Race Conscious Admissions, Crystal R. Gafford Muhammad

ExpressO

The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence does not affect the outcomes of court cases involving normative subject matters, such as those involving race. I find judicial political affiliation to be the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or …

Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch

ExpressO

Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not …

Halbert V. Michigan: The Application Of The Douglas-Ross Dichotomy In Constitutionalizing Indigency In States’ Appellate Court Processes, Omari O. Jackson

ExpressO

This note centers on a discussion of the recent U.S. Supreme Court decision in the Halbert v. Michigan case. This case addressed the issue of whether an indigent defendant is entitled to assistance of counsel by the state to file a leave for appeal. The Court, in a 6-3 decision, held that an indigent defendant is entitled to assistance of counsel when an appeal is available by leave of the court. Prior decisions by the U.S. Supreme Court have addressed the issue of assistance of counsel during the trial and appellate stage of litigation. This note will present a historical …

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

ExpressO

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order of things. Corporate law is state law. Each corporation is formed under the law of its chosen state of incorporation. To ensure consistency and predictability, that law must govern the corporation’s internal affairs. Yet the origin of such a doctrine is puzzling. Respecting the firm’s choice of corporate law, the doctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering the first …

Global Copyright, Local Speech, Michael Dan Birnhack

ExpressO

Copyright is no longer a matter of "promoting the progress of science" in the words of the U.S. Constitution. It is now more than ever before a matter of trade. Furthermore, under the WTO's TRIPS Agreement, we now have a global copyright (G©) regime.

The globalization of copyright law destabilized previous balances. The shift to a trade environment requires us to reevaluate the previous balance. The concern explored in this article is that the old foundations will collapse under the heavy weight of global forces. The concern is that local culture, access to information, research and free speech in general, …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.

Certifying Questions To Congress, Amanda Frost

ExpressO

As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear – particularly issues that implicate the statute’s constitutionality – the court could stay the case and refer the question to Congress, much in the same way that courts …

Who Cares What Thomas Jefferson Thought About Patents: Reevaluating The Patent "Privilege" In Historical Context, Adam Mossoff

ExpressO

The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using privilege as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. …

Statutory Interpretation, Constitutional Limits, And The Dangers Of Collaboration: The Ironic Case Of The Voting Rights Act, Luis Fuentes-Rohwer

ExpressO

The Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the “goddamnedest toughest” legislation possible. But the President and the 89th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the …

Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson

ExpressO

Kelo v. City of New London unleashed an unprecedented legislative response when the Court upheld the use of eminent domain for private economic development as consistent with the Takings Clause of the Fifth Amendment. By exhibiting an extreme deference to the legislative branch and failing to consider the current model of economic development, in which “desperate” cities have seen their economic bases contract and have embarked on fervent urban revitalization campaigns as a result, the Kelo Court failed to take into account the immense influence that large corporate interests wield in the legislature. This influence is generally exercised to the …

Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, Steven Semeraro

ExpressO

This article reassesses the use of federal habeas corpus to enforce the Fourth Amendment’s protection against unreasonable searches and seizures. In 1976, the U.S. Supreme Court prohibited virtually all substantive review of search-and-seizure claims in federal habeas proceedings. A wave of critical commentary followed, arguing that there was no legitimate reason to distinguish the Fourth Amendment from other constitutional rights. In recent years, however, this anomaly in habeas corpus practice has gone almost entirely unexamined despite dramatic changes in the law governing both the Fourth Amendment and habeas corpus itself.

This article does two things. First, it reviews the history …

Treaties In U.S. Courts: Judge Bork's Anti-Originalist Revolution, Kay Graeff, David Sloss

ExpressO

Two cases currently pending before the Supreme Court present an opportunity for the Court to resolve a conflict between two competing models of treaty adjudication: the Marshall model and the Bork model. The Marshall model applies a presumption in favor of judicial remedies for violations of individual treaty rights. The Bork model applies a presumption against private enforcement of treaties in U.S. courts.

During the first fifty years of U.S. constitutional history, the Supreme Court consistently applied the Marshallian presumption in favor of judicial remedies. As a judge on the D.C. Circuit in 1984, Robert Bork created the Borkian presumption …

Regulatory Reform: The New Lochnerism?, David M. Driesen

ExpressO

This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.

Facial Challenges, Legislative Purpose, And The Commerce Clause, David L. Franklin

ExpressO

Over the past decade or so, the Supreme Court has issued an extraordinary and highly controversial series of decisions concerning the scope of Congress’s power. Yet beneath the surface of the debate over the federalism cases lies a parallel dispute that has received far less academic notice. This dispute concerns the proper mode of judicial review in cases testing the scope of congressional power. The uncertainty is greatest in the Commerce Clause area, where the Court’s recent cases—including its 2005 decision in Gonzales v. Raich—have shown a strong preference for facial challenges, in sharp contrast to the Court’s traditional inclination …

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

ExpressO

This article seeks to fill a major gap in modern First Amendment scholarship by providing a comprehensive examination of a new form of doctrinal analysis that has emerged over the past two decades in free speech law: the “intermediate scrutiny” test. This is the first major scholarly examination of this area of law in over twenty years, and identifies a number of important and problematic developments that have occurred during that time. The article proceeds in three phases. First, I provide a historical description of the emergence of the new “intermediate scrutiny” test since the mid-1980s, through a careful examination …

Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen

All Faculty Scholarship

This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject at …

Fear Of An Article V Convention, Arthur H. Taylor

Brigham Young University Journal of Public Law

No abstract provided.

Federal Constitutional Protection For Marriage: Why And How, Lynn D. Wardle

Brigham Young University Journal of Public Law

No abstract provided.

Getting The Math Right: Why California Has Too Many Seats In The House Of Representatives, Paul H. Edelman

Vanderbilt Law Review

"One person, one vote" sounds like a simple mathematical equation. Actually, it isn't quite that easy, but over the last forty years, the Supreme Court has distilled a fairly stable and predictable test for resolving the basic issue of equal representation: how much population difference between districts is permissible? In one area of representation, however, the Court has gotten the math wrong. In its only opinion on the decennial apportionment of Congress, the 1992 case U.S. Department of Commerce v. Montana, the Court punted. Rather than apply its well-established test from the districting cases, the Court deferred to Congress on …

Cheating The Constitution, Pamela R. Metzger

Vanderbilt Law Review

It is constitutional black letter law. To obtain a criminal conviction, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt. The Constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the Constitution. These laws fly, undetected, beneath the constitutional radar, violating fundamental constitutional rights.

Although other constitutional cheats abound, this Article examines one archetypical example of constitutional cheating: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to …

Constitutional Thematics And The Peculiar Federal Marriage Amendment, Scott Dodson

Brigham Young University Journal of Public Law

No abstract provided.

An Amendment To Protect Marriage: Bad In Theory, Likely Worse In Practice, Mark Strasser

Brigham Young University Journal of Public Law

No abstract provided.

Economic Regulation In The United States: The Constitutional Framework, Mark C. Christie

University of Richmond Law Review

The United States of America is well-known (and occasionally well-liked or loathed) as the world's largest free-market capitalist nation. Indeed, many assume that since the United States for more than two centuries has had an economic system based on liberal principles, Adam Smith's "invisible hand" of capitalism must have been embedded in the United States Constitution from the beginning of the American republic. Yet government at all levels in the United States has historically exercised significant regulation of economic and commercial activity-regulation inconsistent with laissez-faire capitalism. The purpose of this article is to consider several questions: (1) what are the …

The Collision Of The Takings And State Sovereign Immunity Doctrines, Eric Berger

Washington and Lee Law Review

No abstract provided.

Fear Of A Blackened Planet: Pressured By The War On Terror, Courts Ignore The Erosion Of The Attorney-Client Privilege And Effective Assistance Of Counsel In 28 C.F.R § 501.3(D) Cases, Chris Ford

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Plane Harassment: The Transportation Security Administration's Indifference To The Constitution In Administering The Government's Watch Lists, Yousri Omar

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.