Constitutional Law Commons^™

Queer Legal Victories: Intersectionality Revisited, Darren Rosenblum

Faculty Publications

(Excerpt)

In my 1995 article "Queer Intersectionality and the Failure of Lesbian and Gay ‘Victories,’” I merged queer and intersectionality theories to critique four lesbian and gay legal “victories.” I argued that queer identity intersected with other identity characteristics, yielding queer communities whose diverse needs reflect their various class, race, gender, and sex identifications. This intersectional perspective led me to view these decisions as victories for only a privileged subset of queer communities that, "but for" their gay or lesbian identity, conform to the "American dream" (De Lauretis 1991; Robson 1992). The United States' juridical heterosexism stifled the progressive potential …

Out Of The Shadows: Preventive Detention, Suspected Terrorists, And War, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the appropriate and inappropriate role of "preventive detention" in responding to terrorist threats. It offers a constitutional jurisprudence of preventive detention, maintaining that absent a showing that dangerous behaviour cannot be addressed through criminal prosecution, preventive detention is unconstitutional. But criminal prosecution is not always a realistic option, and in those circumstances, preventive detention, carefully circumscribed and meticulously safeguarded by procedural protections, may be permissible. Familiar examples of accepted preventive detention regimes include civil commitment of dangerous persons who because of a mental disability cannot be held criminally responsible, and detention of enemy soldiers in a traditional …

The Rise Of The American Adversary System: America Before England, Randolph N. Jonakait

Articles & Chapters

The standard versions of the adversary system's development show that as more lawyers participated in English criminal trials in eighteenth century England criminal procedure became increasingly adversary. Those versions largely ignore American history which shows that the colonies and early America did not simply adopt the English adversary system but moved to an adversary system in advance of England. This article discusses data and developments indicating America's early adoption of an adversary system, including the American guarantee of a right of counsel, the routine presence of counsel in criminal cases in the colonies and the new United States, the American …

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …

Judges Gone Wild: Why Breaking The Mediation Confidentiality Privilege For Acting In "Bad Faith" Should Be Reevaluated In Court-Ordered Mandatory Mediation, Samara Zimmerman

Cardozo Journal of Conflict Resolution

This Note focuses on the reasons why a good faith requirement or a bad faith exception for breaking mediation confidentiality is objectionable and offers an alternative for the Florida court system that, if implemented, could mitigate such disadvantages. I will discuss "the intersection between [a] court-ordered mediation, the confidentiality of which is mandated by law ... and the power of a court to control proceedings," and persons who appear before it by sanctioning conduct that taking place in mediation. Part II of this Note will begin by providing a background to the Doe v. Francis civil case. It will highlight …

Business, The Roberts Court, And The Solicitor General: Why The Supreme Court's Recent Business Decisions May Not Reveal Very Much, Sri Srinivasan, Bradley W. Joondeph

Faculty Publications

This essay presents an empirical examination of the full universe of the Roberts Court’s decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. Moreover, when those two positions diverged-most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs-the Roberts Court overwhelmingly sided with the government.

While these findings are interesting, our …

Can We Talk? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Law Faculty Scholarship

No abstract provided.

Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan

Law Faculty Scholarship

This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …

Cooperative Federalism Post-Schaffer: The Burden Of Proof And Preemption In Special Education, Lara Gelbwasser Freed

Cornell Law Faculty Publications

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

The Undiscovered Country: Execution Competency & Comprehending Death, Jeffrey L. Kirchmeier

Kentucky Law Journal

No abstract provided.

Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Case For A Constitutional Right To Counsel In Habeas Corpus, Emily Garcia Uhrig

McGeorge School of Law Scholarly Articles

No abstract provided.

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Faculty Scholarship

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

Private School Tuition At The Public's Expense: A Disabled Student's Right To A Free Appropriate Public Education , Michael J. Tentido

American University Journal of Gender, Social Policy & the Law

No abstract provided.

O To A, For Helping Kill O: Wisconsin's Decision Not To Bar Inheritance To Individuals Who Assist A Decedent In Suicide, Matthew Barry Reisig

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Constitutional Rules And Institutional Roles: The Fate Of The Equal Protection Class Of One And What It Means For Congressional Power To Enforce Constitutional Rights, William Araiza

Faculty Scholarship

No abstract provided.

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Nelson Tebbe, Christopher Serkin

Faculty Scholarship

No abstract provided.

Honduras: Coup D’Etat In Constitutional Clothing?, Douglass Cassel

Journal Articles

Legal confusion has clouded the recent de facto change of government in Honduras. Some of this arises from the passionate political debate over President Manuel Zelaya and his de facto removal. Without entering that debate, this analysis addresses only questions of international law and related questions of law.

Despite the condemnation of the coup d’état by the United Nations, the Inter-American Commission on Human Rights, and the OAS, and by many governments including the United States, and despite suspension of Honduras from receipt of U.S. and European aid, and from participation in the OAS, diplomatic efforts to return President Zelaya …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Journal Articles

Our topic at this symposium is "religion, the state, and constitutionalism"-not "the Constitution," or "the First Amendment," but "constitutionalism." Countless conferences, cases, books, and articles have wrestled with one version or another of the question, "how does our Constitution, with its First Amendment and its religion clauses, promote, protect, or perhaps restrain religion?" We are considering, it seems to me, a question that is different, and that is different in interesting and important ways: What are connections between religion and religious freedom, on the one hand, and constitutionalism, on the other?

We Can Do Better: The State Of Custodial Misconduct By Correctional Staff In New York, Tanyika Brime

Cardozo Journal of Equal Rights & Social Justice

The note examines a class action lawsuit filed by female inmates against the New York Department of Correctional Services (DOCS), alleging widespread sexual misconduct by correctional staff and constitutional violations. The court ultimately dismissed most claims due to procedural issues, such as failure to exhaust administrative remedies, except for one plaintiff. The analysis highlights systemic failures in addressing prison sexual abuse and advocates for comprehensive legal reforms and external oversight to protect vulnerable inmates.

Barriers To Freedom: Continued Failure Of U.S. Immigration Laws To Offer Equal Protection To Immigrant Battered Women, Katerina Shaw

Cardozo Journal of Equal Rights & Social Justice

The note argues that U.S. immigration laws, despite advancements made by the Violence Against Women Act (VAWA), continue to fail in providing equal protection and adequate relief to immigrant battered women. It highlights that these women face significant legal and non-legal barriers, including unequal treatment under VAWA, burdensome evidentiary requirements, and cultural and financial obstacles that prevent them from seeking help and escaping abusive relationships.

Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash

Law Faculty Publications

Most scholars and courts assume that the Eleventh Amendment emerged from a sudden 'shocked' public reaction to the Supreme Court's decision in Chisholm v. Georgia. The Supreme Court's decision in Hans v. Louisiana has been subject to particular criticism for extending the doctrine of sovereign immunity beyondthe text of the amendment and the particular subject matter before the Court in Chisholm. This article contends that the modern emphasis on Chisholm v. Georgia as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court …

Beyond Incorporation, Kurt T. Lash

Law Faculty Publications

Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …

Copyright Law In And Under The Constitution: A Comparison Between American And German Constitutional Copyright Law, Tom Braegelmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cheney, Vice Presidential Power And The War On Terror, Joel K. Goldstein

All Faculty Scholarship

It is generally conceded that Vice President Cheney has been our most influential vice president. During his two terms, the office assumed a significance which his predecessors, even those who themselves were quite significant, would not have thought possible. Whereas historically the vice presidency had been dismissed as too feeble, the Cheney vice presidency was attacked as too robust.

The unprecedented power of Cheney as vice president had many sources. One of them was the war on terror. It, of course, assumed an unexpected prominence after 9/11, and the war on terror contributed to Cheney’s ascendance and provided the political …

Popular Constitutionalism, Civic Education, And The Stories We Tell Our Children, Thomas G. Donnelly

Law Faculty Publications

This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely deferential to the Supreme Court, limiting references to popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and “court-packing”), but are sometimes receptive to subtler, longer-term checks (like social …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the "evolving standards of decency" doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely-and explicitly--determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court's reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Scholarship

This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …

Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells

Scholarly Works

Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where …