Constitutional Law Commons^™

March 7, 2009: Day 2 Of The Conference, Bruce Ledewitz

Hallowed Secularism

Blog post, “Day 2 of the Conference“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 5, 2009: Impressions From Day 1 Of The New School Religion/Secular Conference, Bruce Ledewitz

Hallowed Secularism

Blog post, “Impressions from Day 1 of the New School Religion/Secular Conference“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 3, 2009: Holy Hullabaloo Over A Ten Commandments Display, Bruce Ledewitz

Hallowed Secularism

Blog post, “Holy Hullabaloo Over a Ten Commandments Display“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Constitutionality Of Home Education: How The Supreme Court And American History Endorse Parental Choice, Chad Olsen

Brigham Young University Education and Law Journal

No abstract provided.

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

NULR Online

No abstract provided.

March 1, 2009: Imagine The Court Being Helpful, Bruce Ledewitz

Hallowed Secularism

Blog post, “Imagine the Court Being Helpful“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

An Opinion Without Standards: The Supreme Court's Refusal To Adopt A Standard Of Constitutional Review In District Of Columbia V. Heller Will Likely Cause Headaches For Future Judicial Review Of Gun-Control Regulations, Ryan L. Card

Brigham Young University Journal of Public Law

No abstract provided.

Between Fragmentation And Unity: The Uneasy Relationship Between Global Administrative Law And Global Constitutionalism, Ming-Sung Kuo

San Diego International Law Journal

This paper aims to critically examine the status of global administrative law within the already widely acknowledged notion of global constitutionalism. While global constitutionalism describes the processual "constitutionalization" of an increasingly globalized world through the values emerging from cross-border regulatory cooperation, the global regulatory process at the heart of global administrative law appears to take the place of "We the People" as the creative force behind global constitutionalism. Contrary to the domestic/national context, the identitarian relationship between global administrative law and global constitutional law suggests the unity of global legality, whether it be called administrative law or constitutionalism. The paper …

Making Sense Of High School Speech After Morse V. Frederick, Mark W. Cordes

William & Mary Bill of Rights Journal

No abstract provided.

Beyond Content Neutrality: Understanding Content-Based Promotion Of Democratic Speech, Marvin Ammori

Federal Communications Law Journal

Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite its wide acceptance, the distinction lacks any precedential or normative basis, unless it also accounts for another equally important distinction. The scholars' conventional view of content-analysis overlooks the difference between the government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.

Precedent and the First Amendment's underlying normative concerns both require …

Bushrod Washington, Herbert A. Johnson

Vanderbilt Law Review

In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the …

John Mclean: Moderate Abolitionist And Supreme Court Politician, Paul Finkelman

Vanderbilt Law Review

His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions. Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact …

Justice Sutherland Reconsidered, Samuel R. Olken

Vanderbilt Law Review

In the annals of Supreme Court history, George Sutherland occupies a curious place. Associate Justice of the U.S. Supreme Court from 1921 to 1938, the Utah native has long been identified as one of the infamous "Four Horsemen," known largely for his role as a judicial conservative instrumental in the Court's invalidation of significant aspects of the New Deal. Yet Sutherland was also the author of several influential opinions involving matters as diverse as civil rights, freedom of expression, and others that recognized the broad authority of the federal government in the realm of foreign and military affairs. A proponent …

Judicial Confusion And Inconsistency In Handling Juror Misconduct: A New Proposal, Kristen D. Clardy

William & Mary Bill of Rights Journal

No abstract provided.

The Sounds Of Silence: Reconsidering The Invocation Of The Right To Remain Silent Under Miranda, Marcy Strauss

William & Mary Bill of Rights Journal

No abstract provided.

Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky

William & Mary Bill of Rights Journal

No abstract provided.

Separationism To The Extreme: The Mt. Soledad Cross And The Ninth Circuit's Crusade To Burden The Free Exercise Clause, Cameron M. Rountree

William & Mary Bill of Rights Journal

No abstract provided.

Road To Nowhere Or Jurisprudential U-Turn? The Intersection Of Punitive Damage Class Actions And The Due Process Clause, James M. Underwood

Washington and Lee Law Review

This Article analyzes the likely impact of recent Supreme Court jurisprudence applying substantive and procedural due process limits on punitive damage awards to class action punitive damage Lawsuits. In BMW v. Gore and State Farm v. Campbell the Supreme Court adopted a tripartite analysis to determine whether punitive damage awards were excessive under the Due Process Clause. Just last year in Philip Morris v. Williams the Court took a step further by imposing the additional 'procedural" limitation that requires trial courts to take steps to ensure that juries do not punish a tortfeasor through an award ofpunitive damages in one …

The Elephant In The Seventh Circuit: A Modified Approach To The Minimal Suspicion Standard, Gregory L. Schinner

Washington and Lee Law Review

No abstract provided.

A Check On Faint-Hearted Presidents: Letters Of Marque And Reprisal, William Young

Washington and Lee Law Review

No abstract provided.

Run For The Border: Laptop Searches And The Fourth Amendment, Nathan Alexander Sales

University of Richmond Law Review

No abstract provided.

What Should Citizens (As Participants In A Republican Form Of Government) Know About The Constitution?, Sanford Levinson

William & Mary Law Review

No abstract provided.

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen

Vanderbilt Law Review

This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …

Pierce Butler: A Supreme Technician, David R. Stras

Vanderbilt Law Review

Despite serving for more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the lesser-known Justices in American history. When his name is mentioned by constitutional scholars, it is usually to deride him for being one of the so-called "Four Horsemen of the Apocalypse," a group of Justices that invalidated efforts by politicians, especially President Franklin Delano Roosevelt, to enact New Deal reforms. Scholars have characterized his role in the development of constitutional law as "minimal," and he is the subject of only one full-length book, A …

The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year

This Article …

"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner

Michigan Law Review

Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901-a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the …

Protecting The Right To Marital Property: Ensuring A Full Equitable Distribution Award With Fraudulent Conveyance Law, Benjamin M. Ellis

Cardozo Law Review

No abstract provided.

Assessing The Scope Of Williamson County: Why It Should Be Applied To Private Purpose Claims, Jonathan Rohr

Cardozo Law Review

No abstract provided.

A Response To Professor Greenawalt, Marci A. Hamilton

Cardozo Law Review

No abstract provided.