Constitutional Law Commons^™

The Meaning Of Life (Or Limb): An Originalist Proposal For Double Jeopardy Reform, Justin W. Curtin

University of Richmond Law Review

No abstract provided.

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

Free To Believe, Richard W. Garnett

Journal Articles

Richard Garnett reviews Religious Freedom and the Constitution by Christopher L. Eisgruber & Lawrence G. Sager, Harvard University Press, 352 pages, $28.95

The Legal, Political, And Social Implications Of The Death Penalty, Hon. William W. Wilkins

University of Richmond Law Review

A recent national poll found that sixty-five percent of Americans favor the death penalty. That's down from eighty percent ten years ago. Moreover, the total favoring the death penalty dropped to fifty percent when those polled were asked to assume that thealternative to the death penalty was life in prison with no chance of parole. And, the number of death sentences imposed in the United States during the last few years has dropped to the lowest level since capital punishment was reinstated thirty years ago. Thus, it would seem that our society's attitude toward capital punishment is changing. What was …

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …

The Source-Centric Framework To The Exclusionary Rule, Luke M. Milligan

Cardozo Law Review

No abstract provided.

The Incredible Shrinking Constitutional Theory: From The Partial Constitution To The Minimal Constitution, James E. Fleming

Faculty Scholarship

Cass Sunstein and I have written fundamentally different books. My Securing Constitutional Democracy: The Case of Autonomy' puts forward a liberal Constitution-perfecting theory, one that aspires to interpret the American Constitution so as to make it the best it can be. Sunstein's Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America2 advances a minimalist critique of radical conservative constitutional theories of "fundamentalism" that call for restoring the "Constitution in exile."

The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba-at least until and unless Congress enacted more specific authorization for the composition and procedures of the commissions. 1 There are many features of the Court's opinion that we find questionable: its analysis of the wartime scope of the "executive Power"2 vested in the President by Article II of the Constitution,3 its construction of the statutes that supposedly limit the President's power …

If They Can Raze It, Why Can't I? A Constitutional Analysis Of Statutory And Judicial Religious Exemptions To Historic Preservation Ordinances, Erin Guiffre

Georgetown Law Historic Preservation Papers Series

In 1996, America almost lost a great piece of its history. The Cathedral of Saint Vibiana, located in Los Angeles, was in danger of being destroyed. The "Baroque-inspired Italianate structure" was completed in 1876 by architect Ezra F. Kysor. The cathedral is one of only a few structures from Los Angeles' early history remaining. As an important part of history and a beautiful piece of architecture, the cathedral was listed on California's register of historic places. In 1994, an earthquake damaged part of the building. After an inspection by the building and safety department in 1996, the only portion of …

Adding Colors To The Chameleon: Why The Supreme Court Should Adopt A New Compelling Governmental Interest Test For Race-Preference Student Assignment Plans, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme Court, …

Abu-Madigam V. Israel Land Administration, Salim Joubran, Edna Arbel, Miriam Naor

Translated Opinions

Facts: In response to large scale incursions onto state land in the Negev by Bedouins and their planting of agricultural crops on that land, the respondents decided to destroy the crops by spraying herbicide from the air. The petitioners challenged this policy on the grounds that the spraying of herbicide was done ultra vires and also endangered the health and dignity of Bedouins in the vicinity of the spraying. The respondents denied that the herbicide used presented any risks to health.

Held: (Justice Joubran) The respondents have no power under the law to spray herbicide in order to prevent incursions …

The Wall Falls, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

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 …

A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …

Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker

Faculty Publications

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech …

The Difficult Task Of Model Rule Of Professional Conduct 3.6: Balancing The Free Speech Rights Of Lawyers, The Sixth Amendment Rights Of Criminal Defendants, And Society's Right To The Fair Administration Of Justice, Mattei Radu

Campbell Law Review

This article will begin with a review of trial publicity rules from the earliest efforts to curb harmful statements of lawyers during trials to the promulgation of Model Rule 3.6 in 1983 by the American Bar Association. It will then examine Gentile, the main Supreme Court case in this area. The article will next consider the 1994 and 2002 amendments to Model Rule 3.6, which were inspired in part by the Court's ruling in Gentile. It will also look specifically at the trial publicity situation in North Carolina, where Durham District Attorney Michael B. Nifong has been charged with violating …

Public Employee Speech Rights Fall Prey To An Emerging Doctrinal Formalism, Charles W. "Rocky" Rhodes

William & Mary Bill of Rights Journal

No abstract provided.

A Sign Of Contradiction, David F. Forte

Law Faculty Articles and Essays

Hadley Arkes offers a brilliant manifesto for natural law. In it, he suggests that judges do not pay enough attention to reason, that their realm of reason is too circumscribed—and he levels the criticism at both modern liberal and conservative judges. He urges them to reach out specifically to the principles of the natural law. Yet the judges resist the invitation. They seem always to have resisted the invitation. Why is that so? Why are natural law reasons resisted?, Arkes asks. Why do judges not seek a proper grounding of their judgment in natural law?

The Mighty Myths Of Kelo, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The press releases of property rights activists and the media’s rapid embrace of their views have perpetuated several myths about the U.S. Supreme Court’s decision in Kelo v. New London. In the immediate aftermath of this myth making, the legislatures of several states have adopted restrictions on the use of eminent domain with uncharacteristic speed. Wisely, the New York State Legislature has been more cautious in its reaction.

Not Just "Every Man": Revisiting The Journalist's Privilege Against Compelled Disclosure Of Confidential Sources, Jaime M. Porter

Indiana Law Journal

No abstract provided.

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

UF Law Faculty Publications

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.

Strategic Planning For Combating Terrorism: A Critical Examination, Arsalan M. Suleman

Cardozo Public Law, Policy & Ethics Journal

The article critiques the U.S. National Strategy for Combating Terrorism and the National Military Strategic Plan for the War on Terrorism, arguing that while they emphasize the ideological dimensions of terrorism, they fail to adequately address the political grievances and root causes that fuel extremist movements. It posits that a comprehensive counterterrorism strategy must integrate military, political, and social measures to effectively combat transnational terrorism.

Fifteen Curious Facts About The Federalist Papers, Dan T. Coenen

Popular Media

University Professor and Hosch Professor Dan Coenen shares 15 interesting facts about The Federalist Papers, which were written to promote the ratification of the U.S. Constitution.

Constitutional Challenges To Indiana's Third-Party Custody Statutes, Kristen H. Fowler

Indiana Law Journal

No abstract provided.

A Well-Regulated Militia: The Founding Fathers And The Origin Of Gun Control In America, David T. Hardy

William & Mary Bill of Rights Journal

No abstract provided.

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

William & Mary Bill of Rights Journal

No abstract provided.