Constitutional Law Commons^™

Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

No abstract provided.

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov

Faculty Scholarship

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

Nonconsensual + Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

Policymakers have adopted programs mandating parties to submit their disputes to court-connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.

Transcript: Taking The Heat: Gender Discrimination In Firefighting Event, American University Women And The Law Program

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Fourth Amendment's New Frontier: Judicial Reasoning Applying The Fourth Amendment To Electronic Communications, Amanda Yellon

Journal of Business & Technology Law

No abstract provided.

Giles V. California: Sixth Amendment Confrontation Right, Forfeiture By Wrongdoing, And A Misguided Departure From The Common Law And The Constitution, 40 U. Tol. L. Rev. 577 (2009), Ralph Ruebner, Eugene Goryunov

UIC Law Open Access Faculty Scholarship

No abstract provided.

Title Vi Disparate Impact Claims Would Not Harm National Security - A Response To Paul Taylor, 46 Harv. J. On Legis. 503 (2009), Michael T. Kirkpatrick, Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor's assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress's original intent, and argue that …

'De Facto Sovereignty': Boumediene And Beyond, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains "de facto sovereignty" over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court's holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations …

The "True" Right To Trial By Jury: The Founders' Formulation And Its Demise, Jon J. Lee

Faculty Articles

No abstract provided.

The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, 17 N.Y.U. Envtl. L.J. 1063 (2009), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

No abstract provided.

Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin

American University Law Review

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …

The Voting Rights Act Through The Justices' Eyes: Namudno And Beyond, Joshua A. Douglas

Law Faculty Scholarly Articles

The most surprising action from the Supreme Court's latest term may be what it did not do: strike down Section 5 of the Voting Rights Act (VRA) as unconstitutional. After the oral argument in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), most Court observers expected the Court to issue a strongly divided opinion invalidating Congress's reauthorization of the provision that requires certain "covered jurisdictions" to seek preapproval, or preclearance, before enacting any change that affects voting. Instead, the Court issued an 8-1 opinion that avoided the constitutional question and decided the case on a narrower statutory …

Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman

University of Richmond Law Review

No abstract provided.

A Short Overview Of The Statutory Remedies For The Wrongly Convicted: What Works, What Doesn't And Why, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

No Notice, No Hearing, No Problem? The Constitutionality Of North Carolina's Prejudgment Statute, Jason A. Jennings

Campbell Law Review

Accordingly, this Comment will analyze the constitutionality of North Carolina's prejudgment statutes. Part I will take a brief look at the history of prejudgment statutes and the "power" doctrine articulated by the United States Supreme Court in Pennoyer v. Neff. Part II will discuss the impact of subsequent Supreme Court cases.

Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman

American University Law Review

This past spring marked the fortieth anniversary of Tinker v. Des Moines Independent Community School District, the landmark student speech case in which the Supreme Court held that three students were protected by the First Amendment when they wore black armbands in their Des Moines, Iowa public schools to protest the Vietnam War. Looking at Supreme Court precedent alone, it would seem as though the Tinker tests were created out of whole cloth: the substantial or material disruption, reasonable anticipation of such disruption, and rights of others tests did not have much of a basis in earlier Supreme Court decisions. …

Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert

American University Law Review

This article examines the erosion of the strength of the Supreme Court’s 1969 opinion in Tinker v. Des Moines Independent Community School District. Indicators of decline range from Justice Thomas’ stunning call in Morse v. Frederick for overruling Tinker to recent lower-court opinions using Tinker to censor off-campus expression posted on the Internet. The article explores possible reasons for the decline and abuse of Tinker and it makes suggestions for its reinvigoration. Part I highlights and analyzes other indicators of the erosion, decline, and abuse of Tinker. Part II then explores some possible reasons and explanations for the midlife crisis …

Accuracy Or Fairness: The Meaning Of Habeas Corpus After Boumediene V. Bush And Its Implications On Alien Removal Orders, Jennifer Norako

American University Law Review

Part One of this Comment will examine the developments of the writ of habeas corpus throughout the history of the United States, beginning with the importance the Founding Fathers placed on the writ. This section will also examine the recent changes in federal court review of alien removal orders, beginning with the 1996 legislation and continuing with the REAL ID Act, along with the federal courts’ responses to those acts. Part Two will then examine the majority opinion in Boumediene v. Bush, addressing the meaning and purpose that Justice Kennedy attached to the writ of habeas corpus and the analytical …

The Limits Of Executive Power, Robert J. Reinstein

American University Law Review

Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to …

Not A Failed Experiment: Wilson-Saucier Sequencing And The Articulation Of Constitutional Rights, Paul W. Hughes

University of Colorado Law Review

This Article considers the two-part sequencing doctrine used in evaluating the qualified immunity defense to claims that government officials have violated federal constitutional rights. This doctrine--often called Wilson-Saucier sequencing- directs courts to first consider whether a plaintiff has properly alleged a constitutional violation before considering whether the defendant is entitled to qualified immunity. The Supreme Court established this rule to ensure that constitutional and statutory rights are fully articulated and refined. This Article provides a unique, empirical evaluation of the rationale underlying Wilson-Saucier sequencing. By comparing judicial decisions before and after Wilson-Saucier sequencing, it offers evidence that mandatory sequencing is …

Statutory Standing And The Tyranny Of Labels, Radha A. Pathak

Oklahoma Law Review

Constitutional and prudential standing doctrines have received an abundance of scholarly consideration. Statutory standing, in contrast, has remained largely unexplored. The Supreme Court’s use of the term is relatively consistent and unobjectionable, but the meaning that many lower courts ascribe to it is anything but innocuous. This article develops a conceptual framework for understanding the different ways in which different courts conceive of statutory standing. Using the Employee Retirement Income Security Act of 1974 (“ERISA”) as a paradigmatic example, it attempts to illustrate the pernicious effects that often result from common misconceptions of statutory standing in disputes involving purely private …

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

Scholarly Works

In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay

Faculty Articles and Papers

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the original public meaning of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …

The Ideology Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article questions whether consistency in legal interpretation is truly a manifestation of the influence of law or instead a means to a preferred policy end. Part I of this Article discusses the legal interpretive tools of originalism and legislative history and how they might influence outcomes in cases. Part II discusses judicial decision-making in the U.S. Courts of Appeals and justifies their use in the analysis. Parts III and IV offer information on our data and methodology, as well as a discussion of the results. Finally, in Part V, we find that the use of legal interpretive strategies are …

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against self incrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the Nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the …

Warrantless Wiretapping: The Bush Administration's Failure To Jam An Elephant Into A Mousehole, Adrienne Ratner

UC Law Constitutional Quarterly

From 2002 through 2005, President George W. Bush unilaterally authorized the "Terrorist Surveillance Program" ("TSP"), a program of dragnet surveillance targeting hundreds of thousands of domestic telephone and email communications. Without the consent of Congress, the TSP subverted the statutory requirement for a judicial warrant for domestic surveillance and thereby violated the Foreign Intelligence Surveillance Act ("FISA"). The Bush Administration and the Obama Administration attempted to justify warrantless wiretapping with a number of post-hoc arguments that maximized the power of the executive branch in the face of heightened national security concerns.

Drawing on constitutional scholarship, Supreme Court cases, and legislative …

Aligning Judicial Elections With Our Constitutional Values: The Separation Of Powers, Judicial Free Speech, And Due Process, Jason D. Grimes

Cleveland State Law Review

This Note consists of five Parts. Part II traces the historical development of state judicial elections from the perspective of the Framers' doctrine of separation of powers. It shows that judicial elections were borne more of historical contingency than constitutional design. Part II then assesses the recent history of elections to the Ohio Supreme Court. It determines that Ohio's judicial elections share two problems with many other states: millions of dollars given to judicial candidates by special interests likely to appear before the court, and candidates' broad freedom of speech to earn the political and financial support of these special …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl

Law Faculty Articles and Essays

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …

Doctrinal Dilemma, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009).

Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …