Constitutional Law Commons^™

Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne

Faculty Scholarship

This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Rediscovering Brandeis’S Right To Privacy, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The State-Created Danger Doctrine, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman

Faculty Scholarship

No abstract provided.

Which Comes First In Federal Court, The Chicken Or The Baby Chicks: The Unavailability Of Federal Remedies For Spousal Consortium Claims Under 42 U.S.C. Section 1983, Michelle N. Ferreri

Villanova Law Review (1956 - )

No abstract provided.

The Perpetual Anxiety Of Living Constitutionalism, Ethan J. Leib

Faculty Scholarship

It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote “we are all living constitutionalists now.” But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the “ascendant” and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet--and don't think one can embrace Balkin's approach and a true living constitutionalism at the same time.

Why Do Landlords Still Discriminate (And What Can Be Done About It)?, 40 J. Marshall L. Rev. 455 (2007), Robert G. Schwemm

UIC Law Review

No abstract provided.

Boxing Out The Big Box Retailers: The Legal And Social Impact Of Big Box Living Wage Legislation, 40 J. Marshall L. Rev. 1339 (2007), Christine Niemczyk

UIC Law Review

No abstract provided.

Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib

Faculty Scholarship

In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core …

On Mock Funerals, Banners, And Giant Rat Balloons: Why Current Interpretation Of Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act Unconstitutionality Burdens Union Speech, Kate L. Racokzy

American University Law Review

This Comment discusses whether the government may prohibit unions from engaging in types of secondary protest like mock funerals. Since 1959, § 8(b)(4)(ii)(B) of the National Labor Relations Act (“NLRA” or “the Act”) has made it illegal for unions to “threaten, coerce, or restrain” secondary employers into severing their business ties with primary employers. Precisely what forms of protest this provision outlaws, however, is unclear. On one end of the spectrum, courts almost always find that picketing secondary employers constitutes illegal coercion, for courts see pickets as having a unique power to induce automatic action. On the other end, the …

A Proposal To Rescue New York Times V. Sullivan By Promoting A Responsible Press, Benjamin Barron

American University Law Review

No abstract provided.

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Maryland Law Review

No abstract provided.

Hamdan As An Assertion Of Judicial Power , Jana Singer

Maryland Law Review

No abstract provided.

You Ain’T Seen Nothin’ Yet: The Inevitable Post- Hamdan Conflict Between The Supreme Court And The Political Branches, Michael Greenberger

Maryland Law Review

No abstract provided.

Levinson And Constitutional Reform: Some Notes, Stephen M. Griffin

Maryland Law Review

No abstract provided.

Originalism, The Living Constitution, And Supreme Court Decision Making In The Twenty-First Century: Explaining Lawrence V. Texas, Ronald Kahn

Maryland Law Review

No abstract provided.

The Fog Of War: Checks And Balances And National Security Policy, Kenneth Ward

Maryland Law Review

No abstract provided.

Geographic Representation And The U.S. Congress, Frances E. Lee

Maryland Law Review

No abstract provided.

Constitutional Reforms To Enhance Democratic Participation And Deliberation: Not All Clearly Trigger The Article V Amendment Process, Carol Nackenoff

Maryland Law Review

No abstract provided.

Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich

Maryland Law Review

No abstract provided.

Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein

Maryland Law Review

No abstract provided.

Two Cheers For Eighteenth-Century Constitutionalism In The Twenty-First Century, George Thomas

Maryland Law Review

No abstract provided.

The Constitution As Idea: Describing - Defining - Deciding In Kelo, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

In Sickness, Health And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

Faculty Publications

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Massachusetts V. Epa Heats Up Climate Policy No Less Than Administrative Law: A Comment On Professors Watts And Wildermuth, Jonathan H. Adler

Faculty Publications

In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation …

Changing The Balance Of Power: Why A Treaty-Trump Presumption Should Replace The Later-In-Time Rule When Interpreting Conflicting Treaties And Statutes, Scott A. Penner

UC Law Constitutional Quarterly

When a statute and treaty conflict, courts resolve the conflict in favor of the one most recently implemented. This rule of statutory interpretation has existed for over a century. However, the underlying rationale for the later-in-time rule does not comport with the Constitution. Instead, this Note argues that courts should employ a treaty-trump presumption-absent a clear statement from Congress of their intent to abrogate a treaty provision-where a later-in-time statute comes into conflict with the treaty.

While the Supremacy Clause does seem to' indicate that statutes and treaties should be treated equally, this Note argues that in reality, the Supremacy …

The Revival Of Impeachment As A Partisan Political Weapon, Richard K. Neumann Jr.

UC Law Constitutional Quarterly

Partisan impeachment-in which one branch of government attacks anotherhas played a central role in three of the four great confrontations between or among branches of the federal government: (1) the struggle, in the first decade of the nineteenth century, between the Federalist-dominated judiciary on one hand and the Jeffersonian administration and Congress on the other; (2) the confrontation from 1865 to 1869 over Reconstruction between President Andrew Johnson and a Congress run by Radical Republicans; (3) the conflict that reached a peak in 1937 between the administration of Franklin D. Roosevelt and a Supreme Court that repeatedly struck down New …

Subsidiary And Religious Establishments In The United States Constitution, Kyle Duncan

Villanova Law Review (1956 - )

No abstract provided.

Hammering In Screws: Why The Court Should Look Beyond Summary Judgment When Resolving Section 1983 Qualified Immunity Disputes, Teressa E. Ravenell

Villanova Law Review (1956 - )

No abstract provided.