Constitutional Law Commons^™

Tradition & The Abolition Of Capital Punishment For Juvenile Crime, Harry F. Tepker

Faculty Articles

No abstract provided.

Learning From All Fifty States: How To Apply The Fourth Amendment And Its State Analogs To Protect Third Party Information From Unreasonable Search, Stephen E. Henderson

Faculty Articles

We are all aware of, and many commentators are critical of, the Supreme Court's third-party doctrine, under which information provided to third parties receives no Fourth Amendment protection. This constitutional void becomes increasingly important as technology and social norms dictate that increasing amounts of disparate information are available to third parties. But we are not solely dependent upon the Federal Constitution. We may have more constitutional protection as citizens of states, each of which has a constitutional cognate or analog to the Federal Fourth Amendment. As Justice Brennan urged in a famous 1977 article, those provisions should be interpreted to …

Kelo V. City Of New London: Supreme Court Refuses To Hamstring Local Governments, James C. Smith

Popular Media

The Court's decision last term in Kelo v. City of New London, 125 S.Ct. 2655 (2005), has drawn heavy fire, most of it unmerited. By the narrowest of margins, the Court held that the city could take single-family homes to develop an office park and to provide parking or retail services for visitors to an existing state park and marina. Many observers thought the Court would take this opportunity to display its "conservative" activism by reining in the power of eminent domain. After all, the Court has grown increasingly protective of property rights during the past two decades. See …

Constitutional Norms In A State Of Permanent Emergency, Sanford Levinson

Georgia Law Review

Perhaps the most important constitutional issue of our time involves claims by the President to exercise power sufficient to confront ostensible 'emergencies" faced by the United States. One question is whether the Constitution grants the President sufficient powers. If not, are presidents justified in going 'beyond the Constitution"in order to do what they believe necessary in the given context? Professor Levinson demonstrates that debates about "emergency powers" have been a feature of our political system almost from its beginning. Many of those deemed our "greatest" presidents-Jefferson, Lincoln, and Franklin Roosevelt-have acted in questionable ways with regard to what might legitimately …

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin J. Heller

Georgia Law Review

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarfs. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation-a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another."2 Professor Levinson wants to find a workable balance between constitutional restraints and …

The Emancipation Proclamation And The Commander In Chief Power, Michael S. Paulsen

Georgia Law Review

Levinson, a good Socratic teacher, poses the question what is the relationship of emergency or necessity to constitutional power, constitutional rights, and constitutional interpretation generally, and surrounds it with a characteristically fascinating discussion. But while his leanings are clear, he does not clearly answer the question his discussion poses. One can certainly infer that Levinson dislikes Carl Schmitt's legal theories of emergency, which he sees as justifying Hitler's rise to power. And it certainly comes through quite clearly that Levinson feels the same way about the U.S. Department of Justice's legal analysis concerning detention and interrogation of war prisoners (which …

Meditations On Carl Schmitt, Mark Tushnet

Georgia Law Review

A spectre is haunting Professor Levinson - the spectre of Carl Schmitt. The German--or should it be Nazi? - constitutional theorist flits in and out of Professor Levinson's discussion. Professor Levinson has done yeoman work in bringing Schmitt's perspective to the attention of constitutional theorists. My comments offer my own reaction to what I take to be Schmitt's points, and in doing so may confirm Professor Levinson's assessment of Schmitt's importance today. I start with the sentence Professor Levinson quotes: "Sovereign is he who decides on the exception. Professor Levinson focuses on the first part of the sentence, because, in …

The Deepening Crisis Of American Constitutionalism, Sanford Levinson

Georgia Law Review

Events since my Sibley Lecture in March 2005 have only underscored the importance of the general topic "Constitutional Norms and Permanent Emergencies"-whatever the adequacy of my own analysis. Probably the most prominent example is the controversy generated by disclosure of the National Security Agency (NSA) surveillance of phone calls of American citizens, undertaken without a scintilla of judicial approval, and by the Bush Administration's defense of the surveillance in spite of legislation, the Foreign Intelligence Surveillance Act (FISA), that seems quite clearly to make it illegal.' Also noteworthy, however, is the Bush Administration's continued assertions that it simply does not …

Liberty From On High: The Growing Reliance On A Centralized Judiciary To Protect Individual Liberty, Patrick M. Garry

Kentucky Law Journal

No abstract provided.

Fighting Terrorism And Preserving Civil Liberties, James B. Comey

University of Richmond Law Review

No abstract provided.

Playing Games With The First Amendment: Are Video Games Speech And May Minors' Access To Graphically Violent Video Games Be Restricted?, Gregory K. Laughlin

University of Richmond Law Review

No abstract provided.

The Evolving Domestic And International Law Against Foreign Corruption: Some New And Old Ethical Dilemmas Facing The International Lawyer, Juscelino F. Colares

Faculty Publications

This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."

Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States v. United States Shoe …

Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught In The Crossfire, William C. Kidder

Michigan Journal of Race and Law

The author concludes that Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education. The author will also argue that there is ample reason to be concerned about the harmful effects of divisive and empirically unsupported claims about APAs influencing the public debate over affirmative action, particularly in Michigan, where an anti-affirmative action initiative nearly identical to California's Proposition 209 will appear on the November 2006 ballot. …

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. …

Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg

Michigan Journal of International Law

This Reply proceeds as follows. Part I outlines the argument of the Nzelibe and Yoo paper. Part II considers their principal-agent analysis in the context of the American political system. Part III elaborates on the "democratic peace" literature, demonstrating that it does not support the conclusions that they draw. Part IV addresses the argument that we are in a new strategic situation, such that old rules ought not apply. Part V concludes.

Permissive Discrimination And The Decline Of Religion Clause Jurisprudence: The Wearing Out Of The Joints, Karl Schock

University of Colorado Law Review

This article argues that modern Supreme Court decisions relating to the Establishment Clause and the Free Exercise Clause have caused both clauses to lose their constitutional force. Although the Court has long recognized a "play in the joints" between the clauses, it had previously resolved this problem exclusively in favor of the Establishment Clause through its well-established doctrine of permissive accommodation. However, the Court's recent decision in Locke v. Davey suggests that the Court is now willing to allow the overlap between the two clauses to pull in the opposite direction as well. This article explains that the Court's decision …

History Turned "Sideways": Granholm V. Heald And The Twenty-First Amendment, Harris Danow

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein

Scholarly Works

No abstract provided.

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Scholarly Works

No abstract provided.

Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin

Scholarly Works

In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.

The Dubitante Opinion, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

A dubitante (pronounced d[y]oo-bi-tan-tee) opinion indicates that “the judge doubted a legal point but was unwilling to state that it was wrong.” Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion--What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of …

"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …

Property And Speech, In Symposium, “The Rehnquist Court And The First Amendment,”, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.

The Safe Games Illinois Act: Can Curbs On Violent Video Games Survive Constitutional Challenges?, Lorraine M. Buerger

Loyola University Chicago Law Journal

No abstract provided.

Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar

Book Chapters

Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

Scholarly Works

No abstract provided.

Why People Who Face Losing Their Homes In Legal Proceedings Must Have A Right To Counsel, Andrew Scherer

Cardozo Public Law, Policy & Ethics Journal

The article advocates for the establishment of a right to counsel for individuals facing eviction in New York City's Housing Court, arguing that such a right is essential for fair legal proceedings, aligns with constitutional principles of due process and equal protection, and is cost-effective in preventing homelessness and reducing societal costs. The author emphasizes that the current system disproportionately disadvantages low-income tenants, who often lack legal representation, and draws on international precedents where such rights are recognized.

The Turbulen Aftermath Of Crawford V. Washington: Where Do Child Abuse Victims' Statements Stand, Stephanie Mcmahon

UC Law Constitutional Quarterly

In its Spring 2004 term, the Supreme Court, in Crawford v. Washington, explicitly articulated the test to determine the admissibility of evidence offered against the accused when the declarant is unavailable, clarifying the prior ambiguous test of Ohio v. Roberts. The Court in Crawford stated that: if (1) the declarant is legally unavailable to testify at trial and (2) the prior statement is testimonial in nature, then testimony is not admissible unless the defendant had a prior opportunity to cross examine the witness. The Crawford clarification appears to strike a death knell to the use of child abuse reporting statements …

The Use And Misuse Of Comparative Constitutional Law (The George P. Smith Lecture In International Law), Cheryl Saunders

Indiana Journal of Global Legal Studies

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States, and (2) as a consequence, other common law countries necessarily share with the United States an interest in …