Constitutional Law Commons^™

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal, Joyce Lee Malcolm

NULR Online

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community. Turning to the practical consequences of Chicago and Washington, D.C.'s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny …

October 25, 2010: Why Are The Democrats Doing So Badly?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Are the Democrats Doing So Badly?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Hate Speech And Harassment: The Constitutionality Of Campus Codes That Prohibit Racial Insults, Alan E. Brownstein

William & Mary Bill of Rights Journal

No abstract provided.

October 20, 2010: What Does Altruism Tell Us About The Nature Of The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Does Altruism Tell Us About the Nature of the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 17, 2010: Woody Allen’S Hell, Bruce Ledewitz

Hallowed Secularism

Blog post, “Woody Allen’s Hell“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 14, 2010: Why Is Snyder V. Westboro Baptist Church A Free Speech Case?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why is Snyder v. Westboro Baptist Church a free speech case?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Can Congress Ban People From Threatening To Burn The Quran? Yes: No Rights Are Absolute, Especially Amid Legitimate Safety Issues, Jessica D. Gabel

Faculty Publications By Year

No abstract provided.

October 9, 2010: What Will Future Secularism Be Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Will Future Secularism Be Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 5, 2010: Sam Harris And Objective Morality, Bruce Ledewitz

Hallowed Secularism

Blog post, “Sam Harris and Objective Morality“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro

All Faculty Scholarship

In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have …

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

Faculty Scholarship

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these …

Sex And The Supremes: Towards A Legal Theory Of Sexuality, Elaine Craig

PhD Dissertations

This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian …

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Scholarly Publications

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side and influencing the types of legal reform those coalitions are able to pursue.

A series of state …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate

San Diego International Law Journal

This Article analyzes two key critical moments in the empowerment of the Supreme Court of India--the assertion of the basic structure doctrine, in which the Court asserted that constitutional amendments may be held unconstitutional on substantive grounds, and the development of the Public Interest Litigation (PIL) regime, through which the Court sought to protect and promote the rule of law and assume an expanded role in governance. I argue, in this article, that these two moments are exemplars of two types of moments that capture distinct aspects of the role of courts in different polities--"constitutional entrenchment" and "judicialization of governance" …

Government Identity Speech And Religion: Establishment Clause Limits After Summum, Mary Jean Dolan

William & Mary Bill of Rights Journal

This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands “government speech” to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Fraternal Order of Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new “government speech doctrine”— a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views—and “government speech” analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. …

The Faces Of Student Cell Phone Regulations And The Implications Of Three Clauses Of The Federal Constitution, Joseph O. Oluwole, William Visotsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the constitutionality of school district regulations on student cell phones, focusing on the Due Process Clause, the Free Speech Clause, and the Fourth Amendment. It argues that while schools have the authority to regulate cell phones to maintain an educational environment, such regulations must comply with legal standards to avoid infringing on students' rights. The analysis concludes that schools can enforce cell phone policies but must adhere to constitutional protections, particularly the Tinker test for speech and the T.L.O. test for searches.

Constitutional Fiats: Presidential Legislation In India's Parliamentary Democracy, Shubhankar Dam

Research Collection Yong Pung How School Of Law

The article presents information on the presidential legislation of the parliamentary democracies, India and Pakistan. It discusses the role of the President acting as the Council of Ministers for the enactment of legislations as ordinances without the consent of the Parliament. Information on the legal interpretation of the ordinances and its interaction with the principles of the parliamentary system of the government is also presented.

Brilliant Disguise: An Empirical Analysis Of A Social Experiment Banning Affirmative Action, Deirdre M. Bowen

Indiana Law Journal

No abstract provided.

On Disguises, Tokens, And Affirmative Action Policies, Mark Strasser

Indiana Law Journal

No abstract provided.

Perspective And Point Of View On Affirmative Action, Kevin D. Brown

Indiana Law Journal

No abstract provided.

Frames Of Injustice: The Bias We Overlook, Adam Benforado

Indiana Law Journal

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, this Article engages the case of Scott v. Harris, 550 US. 372 (2007), the …

Justice John Paul Stevens - His Take On Takings, Alan C. Weinstein

Law Faculty Articles and Essays

This commentary reviews and analyzes Justice John Paul Stevens's role in shaping the Court's views on the takings issue in land use regulation.

The Inconvenience Of A “Constitution [That] Follows The Flag … But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet

UF Law Faculty Publications

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes – as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico – is still the dominant …

Entitled To Be Heard: Improving Evidence-Based Policy Making Through Audience And Public Reason, Will Rhee

Indiana Law Journal

No abstract provided.

Keep Off The Grass!: An Alternative Approach To The Gun Control Debate, Lance Lindeen

Indiana Law Journal

No abstract provided.

The Devil Is In The Lack Of Details, Ann M. Killenbeck

Indiana Law Journal

No abstract provided.

Piercing The Brilliant Veil: Two Stories Of American Racism, Deborah Jones Merritt

Indiana Law Journal

No abstract provided.

The Inherent Structure Of Free Speech Law, Joshua P. Davis, Joshua D. Rosenberg

William & Mary Bill of Rights Journal

To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech or restricts expression in managing an internal governmental function; …

Race And Education: The Future Of Desegregation In The United States, Gregory Coleman Jr.

Journal of Race, Gender, and Ethnicity

No abstract provided.