Constitutional Law Commons^™

Judicial Retirement And Return To Practice, Mary Clark

Scholarly Articles in Law Reviews & Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

Original Habeas Redux, Lee B. Kovarsky

Faculty Scholarship

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …

Advocacy, True Threats, And The First Amendment, Mark Strasser

UC Law Constitutional Quarterly

Brandenburg v. Ohio is thought by many to represent an extremely speech-protective doctrine. Yet, much of the protection offered by Brandenburg can easily be swallowed up by the true threat doctrine, which provides the basis for a robust exception to First Amendment protections. Both the Brandenburg protections and the true threat exception are important to maintain-the great challenge for the Court is to include both within the formulation and articulation of First Amendment jurisprudence so that sufficient protection is afforded to the implicated societal and the individual interests represented by each. Regrettably, rather than provide helpful guidelines that would establish …

Associations And Forums: Situating Cls V. Martinez, Ashutosh Bhagwat

UC Law Constitutional Quarterly

This article explores certain problematic aspects of the Supreme Court's modern First Amendment doctrine through the lens of the Court's 2010 decision in Christian Legal Society v. Martinez. In Martinez the Court upheld a decision by Hastings College of the Law, a public law school, to deny official recognition to a religious student group because the group excluded students based on their religion and sexual orientation. Applying free speech doctrine, the Court found that the Hastings's decision and the policy underlying it were reasonable, viewpoint-neutral restrictions on speech in a limited public forum. While the result reached by the Martinez …

Christian Legal Society V. Martinez: Six Frames, Toni M. Massaro

UC Law Constitutional Quarterly

In Christian Legal Society v. Martinez, the United States Supreme Court upheld the Hastings Law School registered student organization ("RSO") policy, which required that all student groups comply with a nondiscrimination condition on RSO status and benefits. Viewing the case as a matter of government benefits, the Court held that the Christian Legal Society ("CLS") was obliged to comply with an "all-comers" condition on access to benefits, despite the burden on CLS members' expressive associational, free speech and religious freedom to organize around religious beliefs. According to the Court, the policy was a reasonable and viewpoint neutral condition on access …

How Equality Constitutes Liberty: The Alignment Of Cls V. Martinez, Julie A. Nice

UC Law Constitutional Quarterly

Across the constitutional doctrines protecting individual liberty from governmental interference, judicial inquiry often focuses on the unequal infringement of liberty. Many of the most important individual rights have emerged from the synergy between equality and liberty. But the Court has not yet provided any framework for understanding the various ways that liberty and equality interrelate. Neither has any consensus developed around any scholarly attempt to understand the relationship between liberty and equality. Without any grand theory, the search for understanding this important relationship is thus left to induction, as scholars examine one case at a time to glean both specific …

Protecting Surface Land By Internalizing The Cost Of Oil And Gas Development: Wyoming's Surface Owner Accommodation Act Strikes A More Sustainable Balance, Jennifer A. Richardson

UC Law Constitutional Quarterly

Split estate mineral lands have been well established in the United States since 1900, but state legislatures have only recently begun to reexamine whether damages to the surface estate should be paid for by the surface owner or instead by the mineral developer. The Wyoming Surface Owner Accommodation Act ("WSOAA") is one such state law that allows surface owners to be compensated for impacts to the surface estate's value beyond the compensation provided for by federal law. However, unlike the preempted mining regulations of several other states, the WSOAA supplements federal regulations in a permissible manner because it does not …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin, Stacy Caplow

UC Law Constitutional Quarterly

The newest revision of the influential ABA Standards for the Prosecution and Defense Function recognizes the changing practices and attitudes in today's criminal justice system. Placing even more responsibility on prosecutors than past versions, the proposed Standards require prosecutors to be problem-solvers and reformers who consult and cooperate with defense counsel when engaging in both routine and systemic matters. These changes signal new responsibilities for prosecutors that call for more than lip service to their role as administrators of justice. Candor, cooperation and civility are now explicit values that should pervade all dealings between prosecutors, defense lawyers and courts.

Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams

UC Law Constitutional Quarterly

Chief Justice William H. Rehnquist called Lochner v. New York "one of the most ill-starred decisions that [the Supreme Court] ever rendered." The Justices' deliberations in the case demonstrate the courts' reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state's "incredibly sketchy" brief and Joseph Lochner's sterling submission may have determined Lochner's outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York's maximum-hours law for bakery workers was a reasonable public health measure.

The …

Secure In Their Yards - Curtilage, Technology, And The Aggravation Of The Poverty Exception To The Fourth Amendment, Amelia L. Deidrich

UC Law Constitutional Quarterly

Throughout the history of American jurisprudence, curtilage-the physical space surrounding a home-has been deemed to share the heightened Fourth Amendment protections that have traditionally been applied to the home itself. However, a recent trend in United States Supreme Court decisions has carved out an exception to the heightened Fourth Amendment protection of curtilage. In cases involving an alleged Fourth Amendment search where technological advancements were used in the intrusion of a defendant's curtilage, the Court fails to apply the traditionally heightened Fourth Amendment protections to curtilage. This change threatens to aggravate the already present Poverty Exception to the Fourth Amendment …

Whose Constitution Is It Anyway - The Executives' Discretion To Defend Initiatives Amending The California Constitution, Jeremy Zeitlin

UC Law Constitutional Quarterly

The decision of then Governor Arnold Schwarzenegger and Attorney General Jerry Brown to refuse to appeal the United States District Court's findings in Perry v. Schwarzenegger, striking down Proposition 8 as unconsitutional, was a bare assertion of executive power. Although plainly contrary to the will of the majority of the electorate who implemented Proposition 8, the Governor and Attorney General's decision was lawful because it stemmed from the wide discretionary powers that the California Constitution and the Government Code grant to the state's executive officers. Instead, the only check to the particular manner executives wield their discretionary authority is the …

Too Big To Fail And Too Big To Pay: States, Their Public-Pension Bills, And The Constitution, Debra Brubaker Burns

UC Law Constitutional Quarterly

Faced with the most severe budget crises since the Great Depression, many state officials and lawmakers within the United States are desperately trying to pay their bills and balance their budgets. More than a few economists, reporters, academicians, lawyers, and politicians are arguing about legal solutions for pension liabilities that are too big to pay, including possible federal bailouts for states that are deemed "too big to fail."

States choosing to default on or repudiate any public-pension obligation would face significant legal challenges to any action that impaired those pensions. Beyond the protections of the Constitution's Contract Clause, state constitutional …

Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, Donald L. Beschle

UC Law Constitutional Quarterly

The Supreme Court case of Employment Division v. Smith revived an older view of the Constitution's Free Exercise Clause that protected believers only from government acts aimed at beliefs specifically, where those acts grew out of hostility to the religious belief rather than a desire to advance or protect otherwise legitimate nonreligious goals. This reversion to a previously discarded standard by the Supreme Court was much criticized, and states around the country sought to undo its effect by enacting and applying strict scrutiny standards for governmental regulation of religious belief despite there no longer being a Free Exercise exemption.

This …

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Law Faculty Scholarly Articles

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that …

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …

Searching For Equality: Equal Protection Clause Challenges To Bans On The Admission Of Undocumented Immigrant Studies To Public Universities, Danielle R. Holley-Walker

Faculty Publications

No abstract provided.

Proposing Constitutional Amendments By Convention: Rules For Governing The Process, Robert G. Natelson

Faculty Law Review Articles

Much of the mystery surrounding the Constitution's state-application-and-convention amendment process is unnecessary as history and case law enable us to resolve most questions. This article is the first in legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the article is objective exposition rather tan advocacy or special pleading.

Congressional Authority To Interpret The Thirteenth Amendment., Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Methods And Materials In Constitutional Law: Some Thoughts On Access To Government Information As A Problem For Constitutional Theory And Socio-Legal Studies.”, Barry Sullivan

Faculty Publications & Other Works

To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes's insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted …

"Causing The Blood To Flow Where I Touched Him" - Liberalism, Constitutionalism, Christianity, And The "War" At Covey Farm, Anthony V. Baker

Campbell Law Review

I will begin my critique by going directly to the source here, the famous Philadelphia Constitutional Convention of 1787, and ask us to look somewhat carefully at the work of the "founders" there, in considering the ultimate integrity of the product they fashioned and the world they "created." That they gave us a classical liberal wonder, with tenets of that philosophy writ large in government for the very first time, is undeniable, though it will be submitted that they gave us "something else" as well. It is right for us then to explore that "something else," not abstractly, through ideas, …

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the most …

An Equal Rights Amendment To Make Women Human, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.

Comparative Empiricism And Police Investigative Practices, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …

Can They Do That To Me - Does The Eighth Amendment Protect Children's Best Interests?, Maryam Ahranjani

Scholarly Works

No abstract provided.

Can Congress Make You Buy Broccoli? And Why It Doesn’T Matter, David Orentlicher

Scholarly Works

No abstract provided.

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

Scholarly Works

Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

Constitutional Rights And Judicial Independence: Lessons From Iowa, Ian C. Bartrum

Scholarly Works

Iowa held its 2010 judicial retention elections in the shadow of Varnum v. Brien, the 2009 Supreme Court opinion recognizing same sex marriage. As the result of highly politicized campaign, three talented jurists lost their seats on the Court.

This commentary examines that election and offers a structural solution that might better protect constitutional rights against majoritarian intimidation.

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

Scholarly Works

John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that "the principles and policies they advocate and vote for can be supported by the political values of public reason." This so-called "duty of civility" obligates us to cast our votes on "constitutional questions and matters of basic justice" for reasons that we can explain in terms of the public good and the "ideals and principles expressed by society's conception of political justice." Rawls contrasts these public reasons with "nonpublic reasons" - such as "comprehensive religious and philosophical doctrines" - which he claims cannot …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Scholarly Works

This Colloquy piece comments on some doctrinal and theoretical implications of the Supreme Court's recent decision in Salazar v. Buono.

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Scholarly Works

This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.