Constitutional Law Commons^™

An Original Take On Originalism, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The argument that Professor Orin Kerr proffers in An Equilibrium-Adjustment Theory of the Fourth Amendment' is simple: Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. This equilibrium-adjustment theory is elegant and, because it rests on a relatively "neutral" historical foundation, might be attractive to judges and scholars from different perspectives. Contrary to Kerr's assertion, however, it does not easily explain many of the Court's cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are …

Petty Offenses, Drastic Consequences: Toward A Sixth Amendment Right To Counsel For Noncitizen Defendants Facing Deportation, Alice Clapman

Cardozo Law Review

No abstract provided.

A Mosaic Shield: Maynard, The Fourth Amendment, And Privacy Rights In The Digital Age, Erin Smith Dennis

Cardozo Law Review

No abstract provided.

Securing Sovereign State Standing, Katherine Mims Crocker

Faculty Scholarship

There are three main categories of interests upon which states can premise standing to sue as plaintiffs in federal court - proprietary, sovereign, and quasi-sovereign interests. Proprietary and sovereign interests, this Note contends, are held independently by states qua states, whereas quasi-sovereign interests are derivative of citizens’ collective welfare interests. This Note attempts to correct the pervasive confusion clouding the boundary between sovereign and quasi-sovereign interests, arguing that they are meaningfully distinct and should be treated differently.

This argument is especially important in the context of the jurisdictional bar instituted by the Supreme Court in Massachusetts v. Mellon, which prohibits …

Getting Time For An Acquitted Crime: The Unconstitutional Use Of Acquitted Conduct At Sentencing And New York's Call For Change, Megan Sterback

Touro Law Review

No abstract provided.

Claims Of Ineffective Assistance Of Counsel: The Clash Of The Federal And New York State Constitutions, Timothy M. Riselvato

Touro Law Review

No abstract provided.

Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman

Touro Law Review

No abstract provided.

November 28, 2011: Death For The Hallowed Secularist, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Death for the Hallowed Secularist“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 24, 2011: Happy Secular Thanksgiving, Bruce Ledewitz

Hallowed Secularism

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

November 23, 2011: Obama To Side With The Bishops, Bruce Ledewitz

Hallowed Secularism

Blog post, “Obama to Side With the Bishops“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Ali V. State Of Israel, Miriam Naor, Edna Arbel, Yoram Danziger

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The appellant was convicted in the District Court of weapons offenses (trading in weapons) and conspiracy to commit a felony. The offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State …

Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent: First American Financial Corp. V. Edwards, Doug Rendleman, Douglas Laycock

Scholarly Articles

Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …

It’S My Church And I Can Retaliate If I Want To: Hosanna-Tabor And The Future Of The Ministerial Exception, Brad Turner

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Golan V. Holder: Congressional Power Under The Copyright Clause And The First Amendment, Claire Fong

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

November 18, 2011: The Duquesne Secular Society, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Duquesne Secular Society“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 16, 2011: A Secular Defense Of Religious Exemptions, Bruce Ledewitz

Hallowed Secularism

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

November 11, 2011: Veterans Day 2011, Bruce Ledewitz

Hallowed Secularism

Blog post, “Veterans Day 2011“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen

Book Reviews

This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss …

Separation Of Powers And The Middle Way, Jack M. Beermann

Shorter Faculty Works

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding …

November 9, 2011: Do Atheists Use The Word God?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Do Atheists Use the Word God?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 5, 2011: What Is The Origin Of The Separation Of Church And State?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Origin of the Separation of Church and State?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 2, 2011: The Establishment Clause In Shambles, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Establishment Clause in Shambles“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Fiscal Federalism In The United States, Walter Hellerstein

Presentations and Speeches

This presentation explores the fiscal powers of U.S. Federal and State governments with respect to taxation and spending.

Presidential Power And Constitutional Responsibility, Thomas P. Crocker

Faculty Publications

Some constitutional theorists defend unbounded executive power to respond to emergencies or expansive discretionary powers to complete statutory directives. Against these anti-Madisonian approaches, this Article examines how the textual assignment of republican virtues helps to constitute and constrain the president's power. The Madisonian solution for constitutional constraint both creates institutions for unenlightened statesmen and relies on virtue to make governing possible. Constitutional responsibility is a consistent textual theme found in the command to "take Care that the Laws be faithfully executed," the responsibility to remain faithful to the office of president, and the obligation to preserve the Constitution itself. Although …

The Balanced Budget Amendment: A Threat To The Constitutional Order, Neil J. Kinkopf

Faculty Publications By Year

No abstract provided.

Frankfurter’S Champion: Justice Powell, Monell, And The Meaning Of “Color Of Law”., David J. Achtenberg

Faculty Works

In Monroe v Pape, over an impassioned dissent by Justice Frankfurter, the Supreme Court held that Section 1983 authorized suits against state and local officials for constitutional violations even if those violations were not authorized by state or local law.  But it also held that cities and other local governmental entities could not be sued under the statute.  Monell v. Department of Social Services overruled Monroe and held that cities could be sued under the statute.  But it added an odd limitation that became known as the “Monell doctrine”: local governments could not be sued for their employees’ constitutional wrongs …

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …

A Vanishing Virginia Constitution?, Hon. Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Federalism Under Obama, Gillian E. Metzger

William & Mary Law Review

No abstract provided.

Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo

William & Mary Law Review

No abstract provided.