Constitutional Law Commons^™

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner’s petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, the Authors assess this provision’s impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a dialogue. This dialogue served to articulate the broad constitutional principles set forth …

The President’S Question Time: Power, Information, And The Executive Credibility Gap, Sudha Setty

Faculty Scholarship

The rule of law depends on a working separation of powers and transparency and accountability in government. If information is power, the ability of one branch of government to control information represents the ability to control federal legislation, policy, and decision-making. The Framers of the United States Constitution developed the Madisonian model of separated powers and functions, and a system of checks and balances to maintain those separations, with this in mind. History has shown a progressive shift of the power to control information toward the executive branch and away from the Legislature. Particularly when unified, one-party government precludes effective …

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

Solving The Parents Involved Paradox, Lino A. Graglia

Seattle University Law Review

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of “constitutional law,” the Constitution …

A Good Idea Stretched Too Far: Amending The General Aviation Revitalization Act To Mitigate Unintended Inequities, Kerry V. Kovarik

Seattle University Law Review

This Comment will examine the congressional intent that shaped GARA, evaluate the equitable implications of the statute's drafting language, discuss its significant judicial interpretations, and explore the author's recommendations aimed at minimizing GARA's inequities without negating its positive aspects. Part II begins with an analysis of GARA's legislative history, identifies stakeholders and their arguments, and examines issues given insufficient consideration by Congress. Part III assesses how GARA actually affected the aviation market when compared to the stakeholders' predictions. Part IV will survey a selection of important judicial decisions interpreting GARA. Finally, Part V evaluates the inequities created by the statute …

Misuse And Abuse Of Morse V. Frederick By Lower Courts: Sretching The High Court's Ruling Too Far To Censor Student Expression, Clay Calvert

Seattle University Law Review

This Article argues that the Fourth Amendment protects confidential attorney-client communications from unreasonable government intrusion, including unreasonable court orders compelling production of attorney-client communications. The Article begins by focusing on the elements of a claim under the Fourth Amendment. Part II identifies the elements and subsequent sections address each element in the context of attorney-client communications. Part III considers the legitimate expectation of privacy in confidential attorney-client communications. Part IV addresses the search and seizure requirement, explores authority distinguishing between "actual" and "constructive" searches, and concludes that, in addition to searches, court-ordered production of attorney-client communications (a "constructive" search and …

Constitutional Limitations On The Ability Of States To Rehabilitate Their Failed Electric Utility Restructuring Plans, James M. Van Nostrand

Seattle University Law Review

This Article will review the constitutional limitations that come into play when a state seeks to rehabilitate its failed electric utility restructuring plan. Under the Constitution, utilities are entitled to earn a reasonable return on the assets devoted to public service. A situation in which retail rates are frozen may result in denial of a compensatory return if the electric utility is incurring higher costs to generate or procure its power supply. This is the traditional "takings" argument based on the Fifth Amendment to the Constitution, as applied to the states under the Fourteenth Amendment. Apart from this commonly asserted …

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin

Articles

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …

A Truism With Attitude: The Tenth Amendment In Constitutional Context, Gary S. Lawson

Faculty Scholarship

The Tenth Amendment is caught in a crossfire hurricane. From one direction, it is dismissed as "but a truism"' with no significant constitutional function. From another direction, its unassuming language- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" 2-has inspired Byzantine doctrines concerning such matters as federal commandeering of state institutions,3 conditions on federal spending programs implemented by states,4 and federal regulation of state governmental institutions. 5 The Tenth Amendment thus appears to be either the constitutional equivalent of a …

First Amendment Decisions From The October 2006 Term, Erwin Chemerinsky, Marci A. Hamilton

Articles

No abstract provided.

"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus

Faculty Scholarship

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been?

Courts, Constitutions, And Public Finance: Some Recent Experiences From The States, Richard Briffault

Faculty Scholarship

Unlike the federal Constitution, virtually all state constitutions give detailed attention to questions of public finance. State constitutions limit spending, mandate certain types of spending, constrain taxation and debt, and require special procedures for enacting a budget. One consequence of the constitutionalization of the state fisc is its judicialization, as these measures trigger litigation. Fiscal and political conflicts turn into legal disputes, with courts joining governors and legislatures in shaping state budgets and making state fiscal policy.

This chapter provides an early-21st-century snapshot of the state constitutional law of state finance through a survey of six recent state supreme court …

International Delegations And The Values Of Federalism, Neil S. Siegel

Faculty Scholarship

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in …

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the …

Giving The Constitution To The Courts, Jamal Greene

Faculty Scholarship

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of …

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

The Conservative Case For Precedent, Thomas W. Merrill

Faculty Scholarship

This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally.

First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion – even in the law reviews – is animated by …

The Perils Of Theory, Peter L. Strauss

Faculty Scholarship

As I recall, Professor Clark had more sense than to be my student at Columbia, but I heard a lot about him from admiring colleagues. Clearly he has fulfilled the promise they saw, and this remarkable Symposium is only one indicator of that. The article to which our attention is properly drawn, more than two and a quarter centuries into our nation's history, has an originalist base, tightly and persuasively focused on original understandings of the Supremacy Clause. Professor Clark lays out a cogent account of the Clause's politics and the centrality of its language to the most fundamental of …

Lobbying And Campaign Finance: Separate And Together, Richard Briffault

Faculty Scholarship

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates …

Giving Birth In Shackles: A Constitutional And Human Rights Violation, Dana L. Sichel

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Born To No Mother: In Re Roberto D.B. And Equal Protection For Gestational Surrogates Rebutting Maternity, Emily Stark

American University Journal of Gender, Social Policy & the Law

No abstract provided.

"Protecting" Women's Health: How Gonzales V. Carhart Endangers Women's Health And Women's Equal Right To Personhood Under The Constitution, Martha K. Plante

American University Journal of Gender, Social Policy & the Law

No abstract provided.

A Shot Heard 'Round The District: The District Of Columbia Circuit Puts A Bullet In The Collective Right Theory Of The Second Amendment, Amanda C. Dupree

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Regulating Pregnancy Behaviors: How The Constitutional Rights Of Minority Women Are Disproportionately Compromised, Joanne E. Brosh, Monica K. Miller

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Spy Who Sued The King: Scaling The Fortress Of Executive Immunity For Constitutional Torts In Wilson V. Libby, Scott R. Daniel

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Save Me From Harm: The Consequences Of The Ordinary Remand Rule's Misapplication To Gao V. Gonzales, Brenna Finn

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters

Scholarship@WashULaw

This brief essay sketches out a, "militant moderate," take on the role of foreign and international law in constitutional interpretation. The essay examines and critiques the key arguments and assumptions of both internationalists (like Justice Breyer) and nationalists (like Justice Scalia). It urges scholars and policymakers to shift from the Crossfire-style debate that has dominated in recent years, toward a more nuanced approach that strikes a balance between the legitimate concerns of nationalists and the legitimate aspirations of internationalists. A militant moderate approach situates the debate over foreign authority in its broader context: American judges' growing participation in transnational judicial …