Constitutional Law Commons^™

Dura Pharmaceuticals V. Broudo: The Unlikely Tort Of “Securities Fraud”: Dura Pharmaceuticals V. Broudo, Oleg Cross

Duke Journal of Constitutional Law & Public Policy Sidebar

Created pursuant to section 10 of the 1934 Securities Act, Rule 10b-5 is a cornerstone of the federal securities laws. The federal courts' interpretations have largely defined the rule, which seeks to remedy a broad range of securities fraud and market manipulation. Elements of the rule, such as "scienter" and "reliance," were defined at length by earlier court decisions. However, no court had held definitively whether a private plaintiff bringing an action under the rule must demonstrate a causal connection between the alleged fraud and the subsequent loss to that plaintiff. This issue, referred to as "loss causation," was decided …

Revitalizing The Presumption Against Preemption To Prevent Regulatory Gaps: A Case Study Of Judicial Tolerance Of Illegal Railroad Waste Transfer Stations, Carter H. Strickland Jr.

Rutgers Law School (Newark) Faculty Papers

This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing …

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.

D.C. House Voting Rights Act Of 2007: Hearing Before The H. Comm. On The Judiciary, 110th Cong., Mar. 14, 2007 (Statement Of Professor Viet D. Dinh, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham

All Faculty Scholarship

In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.

Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen

All Faculty Scholarship

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …

Was Shelley V. Kraemer Incorrectly Decided? Some New Answers (Winner Of The 2006 Outstanding Scholarly Paper Award From The Association Of American Law Schools), Mark D. Rosen

All Faculty Scholarship

Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley's attribution rationale, a contract's substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause.

Shelley's attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, …

Burying Our Constitution In The Sand? Evaluating The Ostrich Response To The Use Of International And Foreign Law In U.S. Constitutional Interpretation, Cindy G. Buys

Brigham Young University Journal of Public Law

No abstract provided.

Reading, Writing, And Race: The Constitutionality Of Educational Strategies Designed To Teach Racial Literacy, Michael J. Kaufman

University of Richmond Law Review

No abstract provided.

Dwi And Drugs: A Look At Per Se Laws For Marijuana, Charles R. Cordova, Jr.

Nevada Law Journal

No abstract provided.

Fallback Law, Michael C. Dorf

Cornell Law Faculty Publications

Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including "fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications. However, fallback law can and sometimes does take the express form of substitute provisions. Fallback law can raise a surprisingly large number of constitutional and policy questions. A fallback provision itself must be constitutional, but how to discern the constitutionality of the …

Silenced Citizens: The Post-Garcetti Landscape For Public Sector Employees Working In National Security, Jamie Sasser

University of Richmond Law Review

No abstract provided.

Political Judging: When Due Process Goes International, Montré D. Carodine

William & Mary Law Review

The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad. Courts reviewing foreign judgments to determine whether they areworthy of recognition have created an "international due process"analysis. …

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

The Constitutional Foundations Of Chenery, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …

Burton V. Stewart: Reconsidering What Makes A Supreme Court Decision ‘New’, Michael Goodman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Burton v. Stewart, the Supreme Court narrowly avoided deciding whether Blakely v. Washington is a "new" rule as well as a related question of whether Blakely should be applied retroactively on collateral review. Instead, the Court ruled that Mr. Burton's petition for review did not meet the "gatekeeping requirements of 28 U.S.C. § 2244(b)." By deciding Burton on procedural grounds rather than considering the merits of the underlying claims upon which certiorari was granted, the Court delayed consideration of important issues, which are likely to resurface.

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court, James J. Brudney

ExpressO

Abstract for “Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain’s highest court has used …

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting …

The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett

ExpressO

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …

School Naming Rights And The First Amendment's Perfect Storm, Joseph Blocher

ExpressO

This Article uses public school naming rights as a lens through which to examine the conflicts between the tempestuous First Amendment categories of government speech, commercial speech, and forum analysis. Courts and scholars have noted the internal conflicts within these three categories, but have not yet explored the conflicts between them. As the growth of school naming rights shows, government sponsorship arrangements collapse the artificial divisions between the categories and demand a better understanding of their interactions. This Article represents a first attempt to bring coherence to these poorly defined and increasingly important areas of First Amendment law.

Judicializing Federative Power, Richard Broughton

ExpressO

The federal Constitution is ambiguous about federative power, Locke’s description of the power over war and foreign relations. On the one hand, the Constitution is plainly un-Lockean, dividing federative power between Congress and the President and contemplating that they will exercise responsibility, and sometimes competing prerogatives, in war and foreign affairs. Yet there is a rich constitutional and political history in America suggesting that the constitutional scheme is more Lockean than at first blush, even if informal and hidden in complexity. This paper responds to two distinct, but related, lines of argument that seek to limit especially the executive’s Lockean …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …

Amending Executive Order 12866: Good Governance Or Regulatory Usurpation? Part I And Part Ii: Hearing Before The H. Comm. On Science And Technology, 110th Cong., Feb. 13, 2007 (Statement Of Professor David C. Vladeck, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

No abstract provided.

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

The New Federal Indian Law, Matthew L.M. Fletcher

ExpressO

Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases – and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

Galon V. Government Commission Of Investigation, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia

Translated Opinions

Facts: The government set up a commission of investigation to examine what happened in the war in Lebanon in 2006. The commission decided to hold all of its proceedings in camera and not to publish any transcripts of the proceedings, on the ground that they were privileged for the reason of state security. This decision was challenged by the petitioner, who argued that the proceedings should only be held in camera if holding them in public would give rise to a near certainty of serious harm to state security, and that transcripts of those parts of the proceedings that did …