Constitutional Law Commons^™

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …

Public Discourse, Expert Knowledge, And The Press, Joseph Blocher

Faculty Scholarship

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse …

Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young

Faculty Scholarship

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from …

‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young

Faculty Scholarship

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. Young argues that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important …

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …

Searching Secrets, Nita A. Farahany

Faculty Scholarship

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …

Interpretive Contestation And Legal Correctness, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller

Faculty Scholarship

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of …

Raise Your Glass: The Third Circuit Holds New Jersey Wine Laws In Violation Of The Dormant Commerce Clause And Leaves Room For A Future Challenge Of The Direct Shipment Ban, James J. Williamson Ii

Villanova Law Review (1956 - )

The article presents information on the Commerce Clause of the U.S. Constitution and the prevention of the state from engaging in economic protectionism. The ratification of alcohol law, the regulation of shipment of alcohol and the harmonization of the dueling provisions are discussed with reference to the trial of Granholm v. Heald. The wine law challenges and the possible remedies available for the New Jersey wineries are also discussed.

Navigating The Second Amendment Crossfire: The Third Circuit Triggers Working Methodology In United States V. Marzzarella And United States V. Barton, Katherine L. Judkins

Villanova Law Review (1956 - )

No abstract provided.

The Supreme Court And Information Privacy, Fred H. Cate, Beth E. Cate

Articles by Maurer Faculty

Advances in technology—including the growing use of cloud computing by individuals, agencies, and organizations to conduct operations and store and process records—are enabling the systematic collection and use of personal data by state and federal governments for a variety of purposes.

These purposes range from battling crime and terrorism to assessing public policy initiatives and enforcing regulatory regimes. To aid these efforts, governments are promoting mandatory retention and reporting of data by online service providers and the expansion of laws that facilitate wiretaps to greater portions of the web.

The legal framework for protecting individual privacy within this growing world …

Applying Federal Constitutional Theory To The Interpretation Of State Constitutions: The Ban On Special Laws In Maryland, Dan Friedman

Maryland Law Review

No abstract provided.

The Constitutional Inevitability Of Same-Sex Marriage, Laurence H. Tribe

Maryland Law Review

No abstract provided.

Abbott V. Abbott: Reviving Good Faith And Rejecting Ambiguity In Treaty Jurisprudence, Molly K. Madden

Maryland Law Review

No abstract provided.

Symposium - Constitutional Redemption & Constitutional Faith - Introduction

Maryland Law Review

No abstract provided.

Fourteenth Amendment Originalism, Jamal Greene

Maryland Law Review

No abstract provided.

The Constitutional Imaginary: Just Stories About We The People, Gerald Torres, Lani Guinier

Maryland Law Review

No abstract provided.

How I Lost My Constitutional Faith, Sanford Levinson

Maryland Law Review

No abstract provided.

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

Maryland Law Review

No abstract provided.

The Distribution Of Political Faith, Jack M. Balkin

Maryland Law Review

No abstract provided.

Davis V. United States: Good Faith, Retroactivity, And The Loss Of Principle, David Mcaloon

Maryland Law Review

No abstract provided.

Recusal, Government Ethics, And Superannuated Constitutional Theory, Keith Swisher

Maryland Law Review

No abstract provided.

United States V. White: Further Unbalancing The Judicial Analysis Of Forcible Medication Of Defendants Found Incompetent To Stand Trial, Cynthia Polasko

Maryland Law Review

No abstract provided.

Local, Global And Plural Constitutionalism: Europe Meets The World., Daniel Halberstam

Book Chapters

The idea that constitutionalism is central to the legitimate exercise of public power has dominated the modern liberal imagination since the Enlightenment. The ideal of limited collective self-governance has spawned a rich and highly diverse tradition of hard-fought national constitutions from the time of the Glorious Revolution into the present. Today, however, constitutionalism faces its greatest challenge yet: the question of its continued relevance to modern governance. With the explosion of governance beyond the state, many wonder whether constitutionalism as we know it is being marginalized or altogether undermined.

Sexing Harris: The Law And Politics Of Defunding Planned Parenthood, Mary Ziegler

Scholarly Publications

The movement to defund Planned Parenthood has opened a new front in the abortion wars. At the state and national level, anti-abortion organizations have campaigned successfully for new legal limitations on Medicaid or Title X reimbursement for Planned Parenthood. Significantly, legal restrictions reach not only abortion but also other services like contraception and cancer screenings. North Carolina, Wisconsin, and Indiana are among the states to have introduced such bans, and the U.S. House of Representatives approved one before the proposal died in the Senate in April 2011.

At first, the novelty of the movement seems to lie in its open …

California And The Future Of Partial Match Dna Investigations, Jenny Choi

UC Law Constitutional Quarterly

Though DNA testing has been successfuly used in the United States since the 1980s, many high profile prosecutions have thrust this forensic tool into general acceptance as well as the public consciousness. In 2008, California broke new forensic ground, authorizing "partial match" DNA testing to augment the arsenal of law enforcement tools. This proactive technique has yielded substantial results, but has also opened the door to criticism.

This Note analyzes the history of DNA testing in California and nationally, including the progression towards partial match testing. This Note also considers constitutional, social, and policy concerns raised by the use of …