Constitutional Law Commons^™

In Praise Of Judge Fletcher-And Of General Standing Principles, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

All Faculty Scholarship

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

All Faculty Scholarship

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

An Unlikely Feminist Icon?: Justice Harry A. Blackmun's Continuing Influence On Reproductive Rights Jurisprudence, Sarah Primrose

Cardozo Journal of Equal Rights & Social Justice

The article examines Justice Harry Blackmun's pivotal role in the landmark *Roe v. Wade* decision, which legalized abortion in the United States and significantly advanced women's reproductive rights. Despite his initial reluctance to take on the case, Blackmun's opinion established a woman's right to privacy under the Fourteenth Amendment, balancing this right against state interests. The decision has had profound and enduring implications for women's autonomy and equality, though it has also faced persistent challenges and critiques, including concerns about its constitutional basis and the arbitrariness of the trimester framework. The article highlights Blackmun's personal background and jurisprudential approach, emphasizing …

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.

Constitutional Convergence And Customary International Law, Rebecca Crootof

Law Faculty Publications

In Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice, Zachary Elkins, Tom Ginsburg, and Beth Simmons study the effects of post-World War II human rights texts on domestic constitutions, with a particular focus on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). After analyzing 680 constitutional systems compiled by the Comparative Constitutions Project to create a list of seventy-four constitutionally protected rights, the authors evaluate whether countries incorporate internationally codified human rights into their domestic constitutions, whether ratification of international agreements affects the probability of rights incorporation, and whether …

Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert

Articles

Comment in response to Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L. Rev. 1009 (2013).

Hate Speech And The Demos, Jamal Greene

Faculty Scholarship

It is sometimes said that the statist and aristocratic traditions of Europe render its political institutions less democratic than those of the United States. Richard Posner writes of “the less democratic cast of European politics, as a result of which elite opinion is more likely to override public opinion than it is in the United States.” If that is true, then there are obvious ways in which it figures into debates over the wisdom of hate-speech regulation. The standard European argument in favor of such regulation may easily be characterized as antidemocratic: Restrictions on hate speech protect unpopular minority groups …

Plenary Power Preemption, Kerry Abrams

Faculty Scholarship

No abstract provided.

The Story Of Ewing: Three Strikes Laws And The Limits Of The Eighth Amendment Proportionality Review, Sara Sun Beale

Faculty Scholarship

In 1994 California enacted the nation's harshest "three strikes" law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing …

The “Unwritten Constitution” And Unwritten Law, Stephen E. Sachs

Faculty Scholarship

America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law—the everyday, nonconstitutional law, written and unwritten, that structures our government and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language.

This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep …

A Research Agenda For Uncooperative Federalists, Ernest A. Young

Faculty Scholarship

No abstract provided.

Night Of The Living Dead Hand: The Individual Mandate And The Zombie Constitution, Gary S. Lawson

Faculty Scholarship

If someone had told me on June 27, 2012, that five Justices of the U.S. Supreme Court were about to hold in National Federation of Independent Business v. Sebelius 1 (NFIB) that the individual mandate provision in the Patient Protection and Affordable Care Act 2 (PPACA) was not constitutionally authorized either by the Commerce Clause or the Necessary and Proper Clause, 3 I would have popped a cork. I don't even drink, but I would have popped the cork on principle just to hear the sound (and also to irritate my colleagues, most of whom revere the PPACA the way …

Unbundling Constitutionality, Richard A. Primus

Articles

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are …

Congress Underestimated: The Case Of The World Bank, Kristina Daugirdas

Articles

This article challenges the oft-repeated claim that international organizations undermine democracy by marginalizing national legislatures. Over the past forty years, Congress has established itself as a key player in setting U.S. policy toward the World Bank. Congress has done far more than restrain executive branch action with which it disagrees; it has affirmatively shaped the United States’ day-to-day participation in this key international organization and successfully defended its constitutional authority to do so.

The President's Enforcement Power, Kate Andrias

Articles

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Faculty Scholarship

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran

Articles

The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …

"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane

Articles

In U.S. v. Topco Associates, Inc., Justice Thurgood Marshall announced that "[a] ntitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.", In The Antitrust Constitution, Thomas Nachbar takes seriously the idea that federal antitrust laws serve a constitutional function. He argues that, contrary to common assumptions, the antitrust laws cannot be understood merely as a form of economic utilitarianism. Rather, they serve the additional purpose of preventing "regulatory harm," the assertion of law-like control over the conduct of others outside the sphere of one's own property interests.

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign …

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

Faculty Scholarship

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed …

Miller V. Alabama And The (Past And) Future Of Juvenile Crime Regulation, Elizabeth S. Scott

Faculty Scholarship

This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century – an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms …