Constitutional Law Commons^™

God In The Deductions: Tax Deductions For Religion And The Future Of Taxpayer Standing For Establishment Clause Challenges, Drew G. Stark

UC Law Constitutional Quarterly

Tax expenditure theory proposes that the Supreme Court not treat tax deductions any differently than direct expenditures. Such analysis is complicated by the fact that taxpayers typically do not have standing unless they can assert an individual and personalized injury. However, Establishment Clause jurisprudence has a narrow exception allowing taxpayers to establish standing without showing personal injury.

While the Supreme Court has revisited this exception several times since its creation, it has yet to address whether it applies to challenges against tax deductions. In cases that involve tax credits, exemptions, or deductions, the Court has either found standing or neglected …

Motherhood And The Constitution: (Re)Thinking The Power Of Women To Facilitate Change, Angela Mae Kupenda

Journal Articles

Women face many barriers in the journey toward equality. Participants at American Association of Law Schools' ("AALS") recent "Workshop on Women Rethinking Equality" addressed the structural, and perhaps sometimes intentional, barriers constructed by societal forces and by the law against women's struggles for various types of equality. At the workshop, many of us pointed to all of the things "they," meaning others, should do to help dismantle these barriers and to help women forge equality. I agree many barriers remain that must be dismantled, and there is much "they" should do to rectify the generations of obstacles and limitations placed …

The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker

Law Faculty Articles and Essays

This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where …

State Constitutional Prohibitions On Special Laws , Justin R. Long

Cleveland State Law Review

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general laws” that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

Not A Free Press Court?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

UF Law Faculty Publications

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

The Legal And Policy Implications Of The Possibility Of Palestinian Statehood, Winston P. Nagan, Aitza M. Haddad

UF Law Faculty Publications

This paper reviews the history of the claims to statehood and sovereignty of the Palestinian people, from the period of the League of Nations mandate to the current move to secure UN approval of a Palestinian State. The article examines the claims to statehood in international law and examines the problem in the broader context of claims about human rights and humanitarian violations, the Israeli claims to security and legitimacy and the US claims for its mediation goal to ensure that the problem does not descend into a legal vacuum in which the fundamental interests of all parties in security …

The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur

UF Law Faculty Publications

The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers …

Changing Burma From Without: Political Activism Among The Burmese Diaspora, David C. Williams

Indiana Journal of Global Legal Studies

This Article examines the role that the Burmese diaspora plays from afar in influencing reform inside the country. It offers a brief history of the crisis in Burma as background for identifying the various elements of the diaspora: those on the run from the military; those in camps for internally displaced persons and refugees; migrant workers; leaders of the democracy movement active on Burma's borders; asylees; and professional activists with influence on the international community. The different groups use the different strategies available to them. The leadership on the borders is helping to lead the democracy movement inside the country; …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas

Faculty Publications By Year

The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will …

"The Essence Of A Free Society": The Executive Powers Legacy Of Justice Stevens And The Future Of Foreign Affairs Deference, Dawn E. Johnsen

Articles by Maurer Faculty

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by …

The Obama Administration’S Decision To Defend Constitutional Equality Rather Than The Defense Of Marriage Act, Dawn E. Johnsen

Articles by Maurer Faculty

When President Barack Obama announced his view that the Defense of Marriage Act1 (DOMA) violated the Fifth Amendment’s guarantee of equal protection,2 he joined a storied line of Presidents who have acted upon their own constitutional determinations in the absence of, and on rare occasion contrary to, those of the U.S. Supreme Court. How best to proceed in the face of a federal statute the President considers unconstitutional can involve complex judgments, as was true of the difficult decision to enforce but not defend DOMA. Ordinarily the Department of Justice should adhere to its tradition of defending statutes against constitutional …

Anti-Evasion Doctrines In Constitutional Law, Michael B. Kent Jr., Brannon P. Denning

Scholarly Works

Recent constitutional scholarship has focused on how courts - the Supreme Court in particular - "implement" constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the "constitutional operative proposition," but must then design "decision rules" that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. …

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Northwestern Journal of Law & Social Policy

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

The Reach Of The Schoolhouse Gate: The Fate Of Tinker In The Age Of Digital Social Media, Mickey Lee Jett

Catholic University Law Review

No abstract provided.

Shelby County V. Holder And The Voting Rights Act: Getting The Right Answer With The Wrong Standard, Michael James Burns

Catholic University Law Review

No abstract provided.

The Speech Act Defends The First Amendment: A Visible And Targeted Response To Libel Tourism, Marissa Gerny

Student Works

No abstract provided.

Resuscitating Roberts - How Courts Should Construe The Emergency Exception To The Sixth Amendment's Confrontation Clause, Sloan A. Heffron

UC Law Constitutional Quarterly

This paper argues that in the wake of Crawford, Davis, and Bryant, trial courts need a workable definition of "ongoing emergency," as well as a test that can be applied in assessing the admissibility of statements made under such circumstances. The paper first offers a definition for "ongoing emergency". It then offers a totality-of-the-circumstances test that can be applied in determining if a declarant's statement occurs during the course of an ongoing emergency.

Making A Mountain Out Of A Molehill - Marbury And The Construction Of The Constitutional Canon, Keith E. Whittington, Amanda Rinderle

UC Law Constitutional Quarterly

This article challenges the notion that Marbury v. Madison was a critical case immediately after the Supreme Court issued its decision in 1803. The article performs an empirical analysis of the quantity and quality of citations invoking Marbury over the years to determine its importance and impact at various points in American history. Additionally, the article looks at how the case has been, and continues to be used by courts.

Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens Of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, And Justice Becomes Legally Blind, Angela A. Allen-Bell

UC Law Constitutional Quarterly

Solitary confinement is a tool used by the American prison system without a sufficient check on its application. Current practice provides that an inmate's solitary confinement is reviewed at regular intervals by Executive-branch prison administrators. They have employed it to enforce discipline and order in the prison population, but simultaneously have ridden roughshod over inmates' substantive due process rights by failing to provide a meaningful opportunity for a hearing of the facts and justifications for the continued and prolonged solitary confinement of prison inmates. Many, too many inmates have been kept in solitary confinement for extended periods-some for decades-without any …

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

UC Law Constitutional Quarterly

In DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court definitively terminated the possibilities of taxpayer standing previously opened by the Warren Court in Flast v. Cohen.

under the U.S. Constitution governing state taxes and outlays. This body of constitutional law will be beyond the direct review of the U.S. Supreme Court because that Court has rejected state taxpayer standing in the federal courts.

State court judges will be more inclined than their federal counterparts to uphold state tax and expenditure policies against constitutional challenge. Consequently, these state-friendly cases under the U.S. Constitution, …

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Touro Law Review

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

A Constitutional Dilemma For Cities Seeking To Regulate Day Labor Solicitation, Monica Smith

UC Law Constitutional Quarterly

In 2011, the Ninth Circuit invalidated a Redondo Beach municipal ordinance that prohibited individuals from standing on streets or sidewalks and soliciting work, business, or contributions from passing vehicles. The court determined that the law was a facial restriction of speech that did not advance the achievement of the city's stated interest.

This note examines the unsettling gaps in the law as a result of the decision. Although undoubtedly a victory for day laborers, the court's holding potentially precludes any future statute seeking to legitimately regulate such day labor solicitation. Unless crafted with tremendous care, there is a strong likelihood …

Herding Katz: Gps Tracking And Society's Expectations Of Privacy In The 21st Century, Zachary Gray

UC Law Constitutional Quarterly

For nearly forty-four years, the Supreme Court has adhered to the same test for its Fourth Amendment jurisprudence, first announced in Justice Harlan's concurrence in Katz v. United States. Despite the judiciary's steadfast use of the test since its enunciation, the decisions since Katz have been anything but consistent.

Most recently, this nation's federal courts were confronted with questions about the legitimacy of using GPS tracking devices. In its attempt to resolve the issue, the Supreme Court's decision in United States v. Jones strayed from applying Katz and instead relied on the common-law trespass doctrine.

In an attempt to determine …

Tea Party Constitutionalism: Does The Astroturf Have Roots In The History Of The Constitution, Ryan D. Murphy

UC Law Constitutional Quarterly

In 2009, the Tea Party was born-a movement that in just over a year captured a United States senate seat and more than 700 state legislature seats. The movement is a controversial force in American politics, with some arguing that the group merely challenges the moderate tendencies of the Republican Party, while others say it is merely a set of individuals acting at the whims of billionaire backers.

This note argues that the background of the Tea Party is not an originalist movement, as is often claimed, but is instead rooted in Jacksonian populism. Specifically, in assessing the movement's views …

The Dialectic Of Obscenity, Brian L. Frye

Law Faculty Scholarly Articles

Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.

So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.

But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity …

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of …