Constitutional Law Commons^™

Collective Action Federalism And Its Discontents, Neil S. Siegel

Faculty Scholarship

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient …

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.

La Interseccion De La Responsabilidad Extracontractual Y El Derecho Constitucional Y Los Derechos Humanos, George C. Christie

Faculty Scholarship

No abstract provided.

A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young

Faculty Scholarship

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …

Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.

Faculty Scholarship

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of …

Firearm Localism, Joseph Blocher

Faculty Scholarship

Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to …

Implementing First Amendment Institutionalism, Joseph Blocher

Faculty Scholarship

No abstract provided.

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Utah OnLaw: The Utah Law Review Online Supplement

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

No Promo Hetero: Children's Right To Be Queer, Clifford Rosky

Utah Law Faculty Scholarship

This Article argues that the government has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand. Building upon a familiar schema of legal scholarship on LGBT rights, this Article challenges the state’s interest in promoting heterosexuality by articulating a tripartite defense of children’s speech, status, and conduct. It argues that these three aspects of homosexuality are connected to and protected by three constitutional clauses — the First Amendment, …

Livelihood, Ability To Pay, And The Original Meaning Of The Excessive Fines Clause, Nicholas M. Mclean

UC Law Constitutional Quarterly

This article highlights the circuit split that has recently emerged regarding the Eighth Amendment's Excessive Fines Clause in the years since United States v. Bajakajian. The article introduces the traditional English legal principle of salvo contenemento and examines the role this principle played in informing the meaning of the excessive fines under English law. It then goes on to consider American colonial understandings of salvo contenemento, undertaking a brief survey of post-Founding considerations of the meaning of the phrase "excessive fines." The article studies the public meaning of the Excessive Fines Clause at the time of the Fourteenth Amendment's ratification …

A Check-In On Privacy After United States V. Jones: Current Fourth Amendment Jurisprudence In The Context Of Location-Based Applications And Services, Kathryn Nobuko Horwath

UC Law Constitutional Quarterly

This note will discuss whether current Fourth Amendment jurisprudence adequately protects user location information obtained from location-based services ("LBS"), and if not, what changes can be made to ensure our right to privacy in this digital information. In Part I, the concept of LBS and a technical description of how it works is discussed. Part II summarizes the Supreme Court's recent decision in United States v. Jones on warrantless prolonged use of a GPS tracking device and will outline the Fourth Amendment jurisprudence underpinning the Court's logic. Part III delivers an in-depth description of federal statutory law that applies to …

Public Disclosure And Moving The World Forward: Why We Need The America Invents Act, Arman Matevosyan

UC Law Constitutional Quarterly

This note discusses the shift in the United States from a first-to-invent scheme to a first-to-file regime in patents, as provided by the Leahy-Smith America Invents Act. It discusses the historical patent regime in the United States and abroad. It then the Leahy-Smith Act's provisions and the putative constitutional bases upon which the act was passed. Finally, the note argues that the Leahy-Smith Act, and its first-to-file regime, is in line with Supreme Court precedent, creates a better system, and conforms to international standards more closely than the previous first-to-invent regime.

Foreign In A Domestic Sense: American Samoa And The Last U.S. Nationals, Sean Morrison

UC Law Constitutional Quarterly

Citizenship is part of the foundation of being American. Yet the United States treats some of its own as second class citizens. Deep in the South Pacific, forgotten amidst the vast ocean and coconuts, is a small series of islands that represent the only U.S. jurisdiction below the equator. American Samoa remains the last American territory that does not recognize its inhabitants as citizens. For more than a century, American Samoans have fought American wars, pledged allegiance to the American flag, and played a significant amount of American football, yet are categorized as U.S. nationals rather than citizens.

Recently, some …

A Higher Protection For Scholars Faced With Defamation Suits, Ameet Kaur Nagra

UC Law Constitutional Quarterly

Defamation suits against scholars have rarely been successful in the United States because of First Amendment protections, but the prospect of spending a hefty sum to defend a defamation suit has a chilling effect on what scholars research or write. Compared to the publications of media giants, a defamation claim is more likely to inhibit scholarly ideas from scholars such as scientists, psychologists, economists, mathematicians, law professors, and book reviewers.

The U.S. Supreme Court has refused to significantly alter its defamation framework promulgated almost half a century ago. Lower courts have worked within this constitutional framework to protect scholars by …

A Constitutional "Inquiry" Into The Texas Racing Act: The Physical Presence Requirement For Wagering & The Dormant Commerce Clause, Amanda Stubblefield

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Advocacy And Association, John D. Inazu

Utah OnLaw: The Utah Law Review Online Supplement

The lawyer as advocate (who files briefs and delivers arguments) flows out of the lawyer as counselor (who listens to clients, shapes arguments, and forms relationships). In this sense, Professor Tarkington’s focus on attorney-client association mirrors the ways in which many groups function as the pre-political spaces in which ideas and relationships are formed in the first place. It is not enough for us to focus on the moment of expression (or the moment of advocacy) because we will never arrive at these moments without sufficient protection for the background circumstances in which they are crafted. That to me is …

Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith

Faculty Articles

Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court's decisions in District of …

Foreword: Executive Power: From The Constitutional Periphery To The Constitutional Core, Mark A. Graber

Maryland Law Review

No abstract provided.

The Dangerous Fantasy Of Lincoln: Framing Executive Power As Presidential Mastery, Julie Novkov

Maryland Law Review

No abstract provided.

Implications Of The President’S Appointment Power, Peter E. Quint

Maryland Law Review

No abstract provided.

Lincoln, The Emancipation Proclamation, And Executive Power, Henry L. Chambers Jr.

Maryland Law Review

No abstract provided.

The Commerce Clause And Executive Power: Exploring Nascent Individual Rights In National Federation Of Independent Business V. Sebelius, Ronald Kahn

Maryland Law Review

No abstract provided.

Passive-Aggressive Executive Power, Corinna Barrett Lain

Maryland Law Review

No abstract provided.

The Court’S Decisive Hand Shapes The Executive’S Foreign Affairs Policymaking Power, Kimberley L. Fletcher

Maryland Law Review

No abstract provided.

Obama Administration’S Non-Defense Of Doma And Executive Duty To Represent, Kathleen Tipler

Maryland Law Review

No abstract provided.

Constitution-Making Gone Wrong, David Landau

Scholarly Publications

With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that, ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and …

Lawyers, Clients, And Constitutional Rights, Jason Mazzone

Utah OnLaw: The Utah Law Review Online Supplement

Professor Tarkington’s achievement is to show that associational freedom should encompass lawyering. With that, her article should have considerable impact on academic and judicial accounts of associational rights. In practice, however, the impact is likely to come in terms of protections for the ability of organizations to engage counsel—the right to client-attorney association—rather than, as in her focus, on a right that belongs to and is exercised by attorneys.

Democracy In Ohio: Ohio's Fiscal Constitution And The Unconstitutional Nationwide Arena Deal, Dave Ebersole

UC Law Constitutional Quarterly

Between September 2011 and March 2012 multiple public institutions unanimously approved the public purchase of Nationwide Arena in Columbus, Ohio, to save Columbus' National Hockey League franchise, the Blue Jackets, from moving to another locality.

Blue Jackets, from moving to another locality. As a result of public officials' unanimous support for the transaction and disregard for issues of democracy, public debt, economic development, and the transaction's legality under the Ohio Constitution, this matter demonstrates that nonelectoral fiscal restraints are needed in constitutions.

This article argues first that the transaction violates Ohio's constitutional fiscal restraints. Second, Ohio's debt limits, including Ohio …

Redevelopment In The Golden State: A Study In Plenary Power Under The California Constitution, Daniel S. Maroon

UC Law Constitutional Quarterly

On January 20, 2011, California Governor Jerry Brown issued a proclamation reaffirming the fiscal emergency that had been declared by his predecessor administration. In response to the fiscal emergency, the state Legislature enacted two measures that were intended to stabilize school funding by reducing or eliminating the diversion of property tax revenues from school districts to the state's community redevelopment agencies. The California Redevelopment Association, the League of California Cities, and other affected parties immediately brought suit, seeking direct relief from the Supreme Court of California on grounds that the statutes violated various portions of the California Constitution.

This note …