Constitutional Law Commons^™

The Boundaries Of Privacy Harm, M. Ryan Calo

Indiana Law Journal

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

The Telltale Sign Of Discrimination: Probabilities, Information Asymmetries, And The Systemic Disparate Treatment Theory , Jason R. Bent

University of Michigan Journal of Law Reform

The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International Brotherhood of Teamsters, the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a "pattern or practice" of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about whether the systemic disparate treatment …

Is The Government In My Pocket? An Overview Of Government Location Tracking Of Cell Phones Under The Federal System And In Montana, Briana Schwandt

Montana Law Review

Government Location Tracking of Cell Phones

Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework, Randy Beck

Scholarly Works

One of the controversies arising from Roe v. Wade (1973), has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time. The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

Foreign Official Immunity Determinations In U.S. Courts: The Case Against The State Department, Ingrid Wuerth Brunk

Vanderbilt Law School Faculty Publications

The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Soveriegn Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court recently held in Samantar v. Yousuf Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body offederal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims that it holds constitutional power to make …

Constitutional Versus Administrative Ordering In An Era Of Globalization And Privatization: Reflections On Sources Of Legitimation In The Post-Westphalian Polity, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

June 29, 2011: Don’T Liberals Have A Hatred For Public References To God?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Don’t Liberals Have a Hatred for Public References to God?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Prozansky V. Layla Tov Productions Ltd., Yoram Danziger, Edmond E. Levy, Salim Joubran

Translated Opinions

The respondent operates a clubhouse known as Truman Capote in Rehovot.   As part of clubhouse policy, the respondent fixed the following minimal entry ages for visitors: for men – those born in 1982, and for women – those born in 1984. The applicant was born in 1984. On 25 April, 2008 the applicant came to the clubhouse operated by the respondent and by reason of his age was denied entry.  On other occasions too the applicant was denied entry by reason of his age.  Accordingly, the applicant filed a monetary claim in the Small Claims Court for the  sum of …

Optimal Specificity In The Law Of Separation Of Powers: The Numerous Clauses Principle, Gary S. Lawson

Faculty Scholarship

In this response to Professor John Manning’s Separation of Powers as Ordinary Interpretation, Professor Gary Lawson agrees with Manning’s argument that there is no overarching constitutional principle of “optimal specificity.” Lawson argues, however, that there are other overarching principles that are fairly derivable from the text, such as a principle of “decisional independence.” Moreover, Lawson suggests a bigger potential problem with Manning’s argument: when judges apply functionalist or formalist reasoning to decide cases, they may be engaging in a qualitatively different activity than Manning assumes, and his careful interpretative analysis may therefore be largely beside the point.

June 26, 2011: The Political Irresponsibility Of Douglas Laycock, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Political Irresponsibility of Douglas Laycock“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 23, 2011: The Promise Of Religious Naturalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Promise of Religious Naturalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii

Legislation and Policy Brief

In June of 2008, the Supreme Court handed down a landmark decision in District of Columbia v. Heller, declaring that a District of Columbia law prohibiting the possession of handguns in a private home for personal protection violated the Second Amendment of the Constitution.  Justice Scalia, writing for a 5-4 majority, recognized that the protections provided by the Second Amendment apply to individuals—not just “militias”—and emphatically declared that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.”  After four years of …

Referenda And The District Of Columbia's Human Rights Act: Voting On Same-Sex Marriage In The Nation's Capital, Jacob Stewart

Legislation and Policy Brief

Beginning with Massachusetts in 2003, the courts and legislatures of many states have had to decide whether same-sex marriage is or should be a fundamental right under their respective constitutions.  Although only five states and the District of Columbia legally perform same-sex marriages, a few other jurisdictions are in the process of proposing laws moving in that direction.  However, the vast majority of states are holding fast to the traditional heterosexual definition of marriage.  Thirty-eight states have adopted some sort of Defense of Marriage Act, constitutional amendment, or similar measure that defines marriage as the union between one man and …

"Going Green" The Wrong Way: How Governments Are Unconstitutionally Delegating Their Legislative Powers In Pursuit Of Environmental Sustainability, Brandon L. Boxler

Legislation and Policy Brief

Through either executive or legislative power, state and local governments are rapidly effecting policies that encourage environmental sustainability.  Many of these policies have logically targeted buildings and infrastructure, both of which have a significant adverse impact on the environment.  In the United States, 38 percent of the nation’s carbon dioxide emissions and 67 percent of its electricity usage come from buildings.  New laws and policies are attempting to decrease these figures by requiring construction projects to “go green” and implement sustainable building practices.  These legal initiatives have the potential to create substantial environmental benefits by reducing energy consumption, greenhouse gas …

Attention All Internet Users: How Proposed Amendments To The Communications Decency Act Could Save Your Reputation, Niki Blumentritt

Legislation and Policy Brief

Imagine a beautiful fall day on a Southern college campus. The leaves are changing, and the sound of the band practicing for this weekend’s big game echoes throughout campus.  Jane, a college freshman, is walking through campus on the way back to her dorm from her Biology 101 class.  Usually, Jane’s walk is uneventful, aside from the occasional run-in with a friend or sorority sister; however, today is much different.  Jane notices that many people are staring, pointing, and snickering at her.  Is there something on her face?  She quickly pulls out her compact and realizes that all makeup is …

Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin

Seattle University Law Review

For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …

June 20, 2011: What Is Religion/What Is Prayer?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is Religion/What is Prayer?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Brief For Evidence And Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Alexander A. Reinert

Amicus Briefs

Amici are scholars who teach and write about criminal law, criminal procedure, and evidence. We file this brief to address the relationship between rules of admissibility for psychiatric testimony and Eighth Amendment standards for procedure in capital trials. The decision by the Texas Court of Criminal Appeals paid little attention to this relationship, but in so doing it ignored much of this Court’s important capital punishment jurisprudence. Amici write to emphasize that the Eighth Amendment’s emphasis on reliability and accuracy in capital trials has ramifications for the admissibility of expert testimony.

Our scholarly interest in this issue arises from teaching …

June 17, 2011: Listen To The Indiana University Press Podcast, Bruce Ledewitz

Hallowed Secularism

Blog post, “Listen to the Indiana University Press podcast“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 15, 2011: Weird Second Circuit Decision, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Weird Second Circuit Decision“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 12, 2011: Graduation Prayer And The Defense Of Secular Government, Bruce Ledewitz

Hallowed Secularism

Blog post, “Graduation Prayer and the Defense of Secular Government“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 10, 2011: What Are The True Sources Of Wealth?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Are the True Sources of Wealth?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 8, 2011: My Fellow American, Bruce Ledewitz

Hallowed Secularism

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

June 6, 2011: Just What Or Who Is God And Who Believes In God?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Just What or Who is God and Who Believes in God?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 3, 2011: The Debt Limit Is Somehow A Theological Dispute, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Debt Limit is Somehow a Theological Dispute“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Summary Of Aguilar-Raygoza V. State, 127 Nev. Adv. Op. No. 27, Michael Li

Nevada Supreme Court Summaries

An appeal from a judgment denying eligibility for an alcohol treatment diversion program following Appellant’s conviction from a jury trial.

June 1, 2011: When You Get To A Certain Age, Bruce Ledewitz

Hallowed Secularism

Blog post, “When You Get to a Certain Age“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner

Chicago-Kent Law Review

The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can …

The Freedom Of Health, Abigail R. Moncrieff

Law Faculty Articles and Essays

This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the HlNl vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should …

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

Scholarly Works

This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …