Constitutional Law Commons^™

Resistance To Constitutional Theory: The Supreme Court, Constitutional Change, And The "Pragmatic Moment", B. Jessie Hill

Faculty Publications

This Article approaches the law-politics divide from a new angle. Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination. This understanding derives from speech-act theory and from postmodern literary theory. As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence. Applying …

(Dis)Owning Religious Speech, B. Jessie Hill

Faculty Publications

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its …

Thirteen False Blackbirds, Ruthann Robson

Publications and Research

No abstract provided.

Strict Scrutiny Under The Eighth Amendment, Ian Farrell

Sturm College of Law: Faculty Scholarship

The basic principle of the Supreme Court’s interpretation of the Eighth Amendment is that the phrase “cruel and unusual” must draw its meaning from “the evolving standards of decency that mark the progress of a maturing society.” To implement this principle, the Court has considered whether “objective indicia” of prevailing com-munity norms — such as the number of states that impose the punishment — support the finding of a national consensus against the punishment being challenged.

The Court’s reliance on objective indicia has been subjected to sus-tained scholarly criticism. While largely persuasive, the conventional critique has several shortcomings, the most …

Removing The Presumption Of Innocence: A Constitutional Analysis Of The Ogden Trece Gang Injunction, Megan K. Baker

Utah OnLaw: The Utah Law Review Online Supplement

Gang activity poses a substantial problem in many communities. The city of Ogden, Utah, is home to many gangs, and law enforcement is constantly looking for a way to decrease gang violence. In an attempt to reduce gang violence in Ogden, Judge Ernie Jones issued the Ogden Trece gang injunction on September 27, 2010, in Weber County, Utah. The injunction, based on several similar injunctions in California, affects hundreds of alleged Ogden Trece gang members and spans an area including virtually the entire city of Ogden. The injunction prohibits those enjoined from engaging in various illegal activities as well as …

The Property Jurisprudence Of Justice Kennedy, John G. Sprankling

McGeorge Law Review

No abstract provided.

Justice Kennedy’S Jurisprudence On The First Amendment Religion Clauses, R. Randall Kelso

McGeorge Law Review

No abstract provided.

There’S A Whole World Out There: Justice Kennedy’S Use Of International Sources, Stephen C. Mccaffrey

McGeorge Law Review

No abstract provided.

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

Faculty Publications

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

The Evolution Of Justice Kennedy’S Eighth Amendment Jurisprudence On Categorical Bars In Capital Cases, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Scholarly Publications

This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.

What's Religion Got To Do With It? Virtually Nothing: Hosanna-Tabor And The Unbridled Power Of The Ministerial Exemption, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Financial Hospitals: Defending The Fed’S Role As Market Maker Of Last Resort, Jose M. Gabilondo

Faculty Publications

No abstract provided.

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Implications Of United States V. Jones On Dna Collection Form Arrestees: Trespass Prohibited By The Fourth Amendment, Angelique Romero

St. Thomas Law Review

This comment discusses the constitutionality of warrantless DNA collection from arrestees, and proposes an analysis that the Supreme Court should use when deciding on this issue to find that this practice violates the Fourth Amendment. Part II of this comment discusses the general development of DNA collection laws, how the laws have expanded to include persons that have been arrested but not convicted of certain crimes, and the procedures used to collect the DNA samples. In addition, Part II includes a survey of the conflicting decisions by courts across the country and demonstrates the disagreement over the constitutionality of this …

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

Rethinking Section Five: Deference, Direct Regulation, And Restoring Congressional Authority To Enforce The Fourteenth Amendment, Tiffany C. Graham

Scholarly Works

After the Supreme Court's decision in City of Boerne v. Flores, the Court worked systematically to undermine the scope of Congress's regulatory authority under Section 5 of the Fourteenth Amendment. The Court did this as part of the neo-federalist revival, in an effort to restrain congressional power in favor of elevating state power against federal intrusion. The Court took this route in restraining various powers, among them the powers granted to Congress under Article I of the U.S. Constitution. Arguably, though, the effort to restrain Congress was most pronounced in the arena of Section 5. In this Article, I argue …

The Procedural Due Process Rights Of The Stigmatized Prisoner, Lindsey Webb

Sturm College of Law: Faculty Scholarship

This Article addresses the role of stigma in procedural due process claims brought by prisoners. In particular, the Article focuses on inmates whom prisons have classified as sexual offenders although they have never been convicted of a sex offense. Prisons label these inmates—identified here as the “branded class”—as sexual offenders based on information outside of the inmates’ conviction histories, including charges that ended in dismissal or acquittal. As a result of the sex offender classification, prisons impose upon the branded class a wide range of sex offender-specific conditions, including mandatory treatment and sex offender registration.

In addressing procedural due process …

Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede

Faculty Scholarship

This paper argues that public education is an international human right that the U.S. ought to recognise and protect. Recognising a right to public education would correct a major inconsistency in U.S. law by bringing education rights docrtine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognises public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education.

Without Precedent: Legal Analysis In The Age Of Non-Judicial Dispute Resolution, Mark Edwin Burge

Cardozo Journal of Conflict Resolution

For more than a century, the American system of legal education has predominantly emphasized the role of cases and judgemade law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in …

A Requiem For Protest: Anglo-American Perspectives On Protest Post-9/11, 46 J. Marshall L. Rev. 455 (2013), Christopher Newman

UIC Law Review

No abstract provided.

Saving The Deific Decree Exception To The Insanity Defense In Illinois: How A Broad Interpretation Of Religious Command May Cure Establishment Clause Concerns, 46 J. Marshall L. Rev. 561 (2013), Bella Feinstein

UIC Law Review

No abstract provided.

A Balanced Budget Amendment Fit For The Constitution: The Elimination Of Partisanship And Substantive Provisions, 46 J. Marshall L. Rev. 583 (2013), Shane Nichols

UIC Law Review

No abstract provided.

Using The Language Of Turner V. Rogers To Advocate For A Right To Counsel In Immigration Removal Proceedings, 46 J. Marshall L. Rev. 893 (2013), Shane T. Devins

UIC Law Review

No abstract provided.

The Mercenary Gap: How To Protect The Constitutional Rights Of American Contractors In The Age Of The Private Military Firm, 46 J. Marshall L. Rev. 1121 (2013), John Sviokla

UIC Law Review

No abstract provided.

Clever Contraband: Why Illinois’ Lockstep With The U.S. Supreme Court Gives Police Authority To Search The Bowels Of Your Vehicle, 47 J. Marshall L. Rev. 425 (2013), Jason Cooper

UIC Law Review

No abstract provided.

The Rule Of Law, Constitutional Reform, And The Death Penalty In The Gambia, Andrew Novak

Richmond Journal of Global Law & Business

No abstract provided.

Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret

Richmond Journal of Global Law & Business

No abstract provided.

Reverse Revolution: Russia's Constitutional Crisis, Sarah E. Cox

Washington International Law Journal

Russia is experiencing a crisis that threatens the continued relevance of its Constitution. This is demonstrated first by Vladimir Putin’s return to the presidency and the political crisis it has fueled. Second, it is shown by the Constitution’s inability to remedy the political crisis due to the collapse of separation of powers and federalism in Russia, and severe party underdevelopment. Part A of this note discusses Russia’s political crisis, namely the demise of democracy. Part B discusses the Constitution’s injuries, specifically the collapse of federalism, the demise of the separation of powers, and the state’s party underdevelopment. Together, these factors …