Constitutional Law Commons^™

A Criminal Quartet: The Supreme Court's Resolution Of Four Critical Issues In The Criminal Justice System, Richard Klein

Touro Law Review

No abstract provided.

El Constjtucionalismo Latinoamericano: Una Perspectiva Norteamericana In Cádiz, 1812: El Encuentro De España Y América En Sus Sueños De Libertad Y Justicia (Jurídica) (Spanish Edition), Robert S. Barker

Barker Books

"Latin American Constitutionalism: A North American Perspective" is a chapter in a Spanish edition of international and comparative constitutional law papers. Description provided by the publisher:

"Magnífica coedición de editorial Rasche y la Academia Interamericana de Derecho Internacional y Comparado, coordinada por el Presidente de esta, el Dr. Raúl Lozano. En esta cuidada obra prestigiosos juristas iberoamericanos analizan exhaustivamente la influencia que tuvo la Constitución de Cádiz de 1812 en los diversos ordenamientos constitucionales de esos territorios. Como indica el propio Dr. Lozano en la Presentación, en opinión de un importante número de destacados constitucionalistas, la Carta de Cádiz es …

The Right To Learn: Intellectual Honesty And The First Amendment, Jeffrey M. Cohen

UC Law Constitutional Quarterly

Science education is one of the most hotly contested issues in public debate. Even after decades of jurisprudence and scholarly analysis, politicians still ignite public passions by suggesting that creationism or intelligent design theory be taught alongside of evolution in public school science classrooms. Despite political rhetoric, the Establishment Clause has been steadfastly used to prevent religion masquerading as science from entering the science classroom. However, public officials have launched attacks recently on other scientific theories, such as climate change, that are not religiously motivated. Students are left in these instances without resort to the Establishment Clause and are potentially …

The Reality Of Social Rights Enforcement, David Landau

Scholarly Publications

Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights hut should do so in …

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Touro Law Review

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of …

Is Medicaid Constitutional?, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

Nigro V. United States: The Most Disingenuous Supreme Court Opinion, Ever, A. Christopher Bryant

Faculty Articles and Other Publications

The chief challenge presented by an opportunity to comment on the "Worst Supreme Court Opinion, Ever," is that so many candidates vie for the title. Fortunately, Professor Stempel has stipulated that the identification of a champion in no way implies acquiescence in any unnamed judicial wrongs. No sane scholar could accept the invitation on any other terms.

No doubt my choice of the Court's Prohibition-Era ruling in Nigro v. United States is a surprising one. Most scholars and lawyers have probably never even heard of the decision nor of the 1914 federal narcotics law that it unconscionably upheld. Nigro's obscurity …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Faculty Articles and Other Publications

In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell's was that such abuse of language - which in his novel he labeled "Newspeak"-would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court's June 28 decision both …

Foreword: Constitutional Constraints State Health Care & Privacy Regulation After Sorrell V. Ims Health, John M. Greabe

Law Faculty Scholarship

This brief Foreword explains that First Amendment law is fertile ground for analysis under choice of law principles. It then opines that the majority and dissenting opinions in Sorrell v. IMS Health are rooted in different choices of law that would benefit from a more explicit acknowledgment and explanation.

Robert Taylor, An Appreciation, Bruce Ledewitz

Ledewitz Papers

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

Constitutional Forbearance, A. Christopher Bryant

Faculty Articles and Other Publications

This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases …

Political Hot Potato: How Closing Loopholes Can Get Policymakers Cooked, Stephanie Mcmahon

Faculty Articles and Other Publications

Loopholes in the law are weaknesses that allow the law to be circumvented. Once created, they prove hard to eliminate. Acase study of the evolving tax unit used in the federal income tax explores policymakers' response to loopholes. The1913 income tax created an opportunity for wealthy married couples to shift ownership of family income between spouses, then to file separately, and, as a result, to reduce their collective taxes. In 1948, Congress closed this loophole by extending the income-splitting benefit to all married taxpayers filing jointly. Congress acted only after the federal judiciary and Treasury Department pleaded for congressional …

Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank

Faculty Articles and Other Publications

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …

Berghuis V. Thompkins: Retreat From Miranda, Jacquline Grossi

Barry Law Review

No abstract provided.

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

Respect And Contempt In Constitutional Law, Or, Is Jack Balkin Heartbreaking?, Andrew M. Koppelman

Faculty Working Papers

How many constitutions have we? Part of what we hope for from constitutional law is that we be united, despite our political differences, by a unifying political charter. John Rawls speaks for many when he writes that a well-ordered society "is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice."

Jack Balkin argues that we have to give up on the Rawlsian aspiration, and learn to live in a world where, at a fundamental level, our fellow citizens are strange to us. They believe in different principles than …

Expecting The Right Thing: The Imperative For Recognising Substantive Legitimate Expectations In Singapore, Siraj Aziz Shaik, Yi Siong Sui

2008 Asian Business & Rule of Law initiative

Recognition of a legitimate expectation for a substantive benefit has long been fraught with controversy both within jurisdictions that do and do not adopt the doctrine. This article seeks to assess the validity and utility of the doctrine of substantive legitimate expectations as it has developed in common law jurisdictions and extrapolate a conclusion which would be of guidance as to what the Singapore position on the doctrine ought to be. This article argues that on balance the doctrine of substantive legitimate expectations is a welcome addition to the landscape of administrative law in Singapore, and that the seminal case …

Regulating At The Margins: Non-Traditional Kinship And The Legal Regulation Of Intimate And Family Life, Courtney Megan Cahill

Scholarly Publications

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection— same-sex relationships, domestic partnerships, de facto parenthood, and nonsexual procreation—the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that …

Will Free Speech Get A License To Drive In Florida?: A Proposal For Distinguishing Free Speech From Government Speech In Florida Specialty Plate Cases, Christopher Robert Dillingham Ii

Florida A & M University Law Review

Specialty license plates for automobiles, which publish individual and special interest Free Speech, present a quagmire for the courts when analyzed through the lens of the First Amendment's Free Speech Clause. While citizens and groups can obtain personalized license plates that publish both symbolic and written speech, state governments often exercise strict editorial control over their license plates. This regulatory scenario raises the dual questions of who is speaking - the government or the private party - and how much constitutional power the government has to engage in viewpoint restriction in regulating that speech in this traditional government forum. The …

History Of De Jure Segregation In Public Higher Education In America And The State Of Maryland Prior To 1954 And The Equalization Strategy, John K. Pierre

Florida A & M University Law Review

No abstract provided.

Prece-Don't: Corporations And The Rise Of The Modern Judicial Dictatorship, Justin Levitt

Florida A & M University Law Review

In 2010, the Supreme Court decision, Citizens United v. Federal Election Commission, declared unconstitutional any law forbidding corporations and unions from using general treasury funds for "electioneering communication," or political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election.

This note will examine the implications of the Citizens United decision and will argue that the future of First Amendment protection of corporate speech does not turn on any notion of corporate personhood. It will explore exactly how the Court has applied the equal protection clause of the Fourteenth Amendment to corporations. It …

A Modest Experiment In Pedagogy: Lessons On Comparative Constitutional Law, Thomas E. Baker

Faculty Publications

This article describes how the author integrated comparative and international law lessons into a first year course on U.S. Constitutional Law. This version of a paper originally submitted to the International Association of Law Schools Conference on Comparative Constitutional Law in 2009, has been enriched by adding citations and references to relevant papers of other conference participants. The article includes a review of the literature on teaching comparative constitutional law, basic pedagogical theory, a bibliography, some practical advice and a set of four lessons on the themes of judicial review, transnational interpretation, affirmative action and reproductive rights, complete with discussion …

Prescriptive Jurisdiction, Adjudicative Jurisdiction, And The Ministerial Exemption, Howard M. Wasserman

Faculty Publications

No abstract provided.

Judicial Engagement, Written Constitutions, And The Value Of Preservation: The Case Of Individual Rights, Elizabeth Price Foley

Faculty Publications

When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for …

Constitutional Faith, Constitutional Redemption, And Political Science: Can Faith And Political Science Coexist?, H. W. Perry Jr.

Maryland Law Review

No abstract provided.

Foia And The First Amendment: Representative Democracy And The People's Elusive "Right To Know", Barry Sullivan

Maryland Law Review

No abstract provided.

The First Amendment In The Multicultural Climate Of Colleges And Universities: A Story Ending With Christian Legal Society V. Martinez, Blake Lawrence

UC Law Constitutional Quarterly

This article argues that the "limited public forum" analysis used by the United States Supreme Court in Christian Legal Society v. Martinez correctly addresses the competing concerns of students and university administration when approaching free speech and association on college and university campuses. It extensively analyzes the creation of the "limited public forum" analysis, explains why that particular analysis is illequipped for limiting high school speech, and comprehensively addresses the Christian Legal Society v. Martinez opinion. Further, weaknesses in the dicta of Christian Legal Society v. Martinez are analyzed and points made by dissenting Justices are critiqued.