Constitutional Law Commons^™

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn

Michigan Law Review

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to the United States. I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

The Remnants Of Exaction Takings, Timothy M. Mulvaney

Faculty Scholarship

This article explores the ability of local governments to impose discretionary permit conditions, or "exactions, " to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These "regulatory takings " decisions provide land use regulators with …

Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert

Articles

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called "Bivens "cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years— is that the Court's individual liability model, in …

February 27, 2010: One More Time With Yoo, Bruce Ledewitz

Hallowed Secularism

Blog post, “One more time with Yoo“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Children's Rights Amendment And Family Law, Fergus Ryan

Other resources

This blog entry is part of a carnival blog posted to http://humanrightsinireland.wordpress.com/ It addresses the provisions of the proposed constitutional amendment on children's rights, as formulated by the Joint Oireachtas Committee on the Constitutional Amendment on Children, published in February 2010. This brief comment analyses the proposal, with particular reference to its potential impact on children in non-traditional family units.

February 25, 2010: John Yoo And Nuremberg, Bruce Ledewitz

Hallowed Secularism

Blog post, “John Yoo and Nuremberg“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

John Yoo And Jay Bybee Dodge Disciplinary Action But Recall Nuremberg, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Lewis V. City Of Chicago: Title Vii’S Limitations Period For Disparate Impact Charges, Kelsey Van Wart

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Daka V. Minister Of The Interior, Ayala Procaccia, Dorit Beinisch, Salim Joubran

Translated Opinions

Facts: The petitioners were married in 1996; petitioner 1 is an Israeli citizen and petitioner 2 was born abroad and at the time of their marriage was a resident of the occupied territories. Following the couple’s marriage, petitioner 2 lived in Israel pursuant to limited duration permits to stay in Israel granted through a family unification process. These permits were regularly renewed until 1999, when she received a permit granting her temporary residence status. In 2003, a government resolution that had been adopted in 2002 and which had reversed previous policy on family unification approvals, was legislatively enacted in the …

February 22, 2010: God Is Easy, Death Is Hard, Bruce Ledewitz

Hallowed Secularism

Blog post, “God is easy, death is hard“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

February 20, 2010: Pawlenty's God Is In Charge, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pawlenty's God is in charge“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

February 17, 2010: So It’S A Christian Country…, Bruce Ledewitz

Hallowed Secularism

Blog post, “So It’s a Christian Country...“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Pleasant Grove City V. Summum: Monuments, Messages, And The Next Establishment Clause, Lisa Shaw Roy

NULR Online

The facts of Pleasant Grove City v. Summum are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display. Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court. During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) …

February 13, 2010: Evolution In The Bible, Bruce Ledewitz

Hallowed Secularism

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

February 11, 2010: Economic Life Under Hallowed Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Economic Life Under Hallowed Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A V. State Of Israel, Eliezer Rivlin, Edmond E. Levy, Dorit Beinisch, Edna Arbel, Miriam Naor, Salim Joubran, Elyakim Rubinstein, Ayala Procaccia, Asher Grunis

Translated Opinions

Facts: The appellant was arrested on suspicion of membership in an illegal organization, and had been the subject of: a. a decision by the authority in charge to postpone the appellant’s first meeting with an attorney by three days; and b. a decision, rendered two days after his arrest, to extend his detention by an additional ten days. The Jerusalem District Court rejected the state’s request to have the appeal of the detention extension decision deliberated in the absence of the appellant; and the state successfully appealed that decision to the Supreme Court. The appeal against the extension of the …

February 9, 2010: Politics Is Not Theology, Bruce Ledewitz

Hallowed Secularism

Blog post, “Politics is not theology“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

February 7, 2010: The Crime Of John Yoo, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Crime of John Yoo“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

February 5, 2010: So, Christopher Hitchens Is A Hallowed Secularist, Bruce Ledewitz

Hallowed Secularism

Blog post, “So, Christopher Hitchens is a Hallowed Secularist“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

False Comfort And Impossible Promises: Uncertainty, Information Overload, And The Unitary Executive, Cynthia R. Farina

Cornell Law Faculty Publications

The movement toward President-centered government is one of the most significant trends in modern American history. This trend has been accelerated by unitary executive theory, which provided constitutional and “good government” justifications for what political scientists have been calling the “personal” or “plebiscitary” presidency.

This essay draws on cognitive, social and political psychology to suggest that the extreme cognitive and psychological demands of modern civic life make us particularly susceptible to a political and constitutional ideology organized around a powerful and beneficent leader who champions our interests in the face of internal obstacles and external threats. The essay goes on …

February 2, 2010: Walker Percy On Non-Believers And Believers, Bruce Ledewitz

Hallowed Secularism

Blog post, “Walker Percy on Non-Believers and Believers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Poll/Contest: What Shape Is The Constitution?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

State V. Burgess: A Limitation On A Defendant’S Right To Remain Innocent, Elizabeth Lahey

The University of New Hampshire Law Review

[Excerpt] “This note will explore the current state of the privilege against self-incrimination, particularly in regard to whether it works to bar negative inferences from being drawn from a defendant’s silence during sentencing in order to determine his remorse for the crime of which he has been convicted. I will focus primarily on the issue in the context of the recent New Hampshire case State v. Burgess. In that case, the court recognized the application of the privilege at sentencing, but nonetheless carved out a unique exception which made negative inferences permissible at sentencing when the defendant has admitted to …

To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Law & Economics Working Papers

In Citizens United vs. FEC, the Supreme Court struck down a Federal ban on direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. The thesis of this Article is that by viewing Citizens United through the prism of theories about the corporate form, it is possible to understand why both the majority and the dissent departed from previous Supreme Court cases on the First Amendment rights of corporations, and to …

Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong

American University Law Review

Jurisprudential remedies for racial discrimination presume the existence of clear categories. Indeed, Carolene Products’ classic allusion to “discrete and insular minorities” evokes racial groups that are readily identified and defined. Yet this reliance on categories renders antidiscrimination jurisprudence inhospitable to claims brought by individuals identified as multiracial and discriminated against on that basis. By addressing racial discrimination exclusively through categories, courts have lost sight of the fact that the purpose of antidiscrimination law is not to protect individuals from discrimination based on membership in recognized categories, but rather to protect individuals from the harms inflicted by racism.

This Article explores …

Freedom Of Speech In School And Prison, Aaron H. Caplan

Washington Law Review

Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary’s belief …

Gender Autonomy, Transgender Identity And Substantive Due Process: Finding A Rational Basis For Lawrence V. Texas, Jillian T. Weiss

Journal of Race, Gender, and Ethnicity

No abstract provided.

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Cornell Law Faculty Publications

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

Scholarly Works

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its first …