Constitutional Law Commons^™

A Dilemma Of Doctrinal Design: Rights, Identity And The Work-Family Conflict, Lauren Sudeall Lucas

Faculty Publications By Year

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Faculty Publications By Year

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad W. Flanders

All Faculty Scholarship

In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.

Although Andy Koppelman positions himself in …

La Citoyenneté Aux Etats-Unis : Une Valeur En Perpétuel Devenir, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Is Economic Protectionism A Legitimate Governmental Interest Under Rational Basis Review?, Roger V. Abbot

Catholic University Law Review

No abstract provided.

Blocking The Ballot: Why Florida’S New Voting Restrictions Demonstrate A Need For Continued Enforcement Of The Voting Rights Act Preclearance Requirement, Michael Ellement

Catholic University Law Review

No abstract provided.

Why Non-Discrimination Policies In Higher Education Require A Second Look: The Battle For First Amendment Freedom In The University Setting, Rebecca D. Ryan

Catholic University Law Review

No abstract provided.

Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave

Catholic University Law Review

No abstract provided.

Book Review Of Arnold H. Leibowitz, An Historical-Legal Analysis Of The Impeachments Of Presidents Andrew Johnson, Richard Nixon, And William Clinton: Why The Process Went Wrong, Jeffrey B. Morris

Touro Law Review

No abstract provided.

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz

Touro Law Review

No abstract provided.

The Great And Mighty Tax Law: How The Roberts Court Has Reduced Constitutional Scrutiny Of Taxes And Tax Expenditures, Linda Sugin

Faculty Scholarship

This article compares National Federation of Independent Business v. Sebelius – the Supreme Court’s decision upholding the individual mandate in Obamacare as a tax, with Arizona Christian Schools v. Winn – the Supreme Court’s decision denying standing to taxpayers with an Establishment Clause challenge to a state tax credit. It argues that these cases aggravate a growing tension between the economic and legal analyses of taxation by reducing the legal significance of economic analysis in constitutional cases. It suggests that Arizona Christian Schools was a truly radical decision because it conceptualized tax expenditures as private action immune from constitutional attack, …

What Is Constitutional Obligation?, Abner S. Greene

Faculty Scholarship

Mike Seidman’s book, On Constitutional Disobedience, offers an impressive challenge to constitutional fidelity. With much of it, my book Against Obligation is on all fours – we both share the view that our Constitution’s meaning should not be bound by past sources. Seidman seems to go further, though, and reject the bindingness of the Constitution as a text. What does it mean to ask whether the Constitution itself obligates? Most of the Constitution doesn’t set rules for citizens; rather, it establishes powers, and what we might consider conditional obligations, for officials. All government officials in the United States swear an …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Modern Models Of Organ Donation: Challenging Increases Of Federal Power To Save Lives, Jonathan G. August

UC Law Constitutional Quarterly

Much of today's scholarship on noninformed consent organ donation models has focused on either presumed consent or paid donation systems. Recently, however, individual states and foreign countries have begun to rethink their organ donation procedures in an attempt to increase donation rates.

Looking specifically at the informed consent model and the brand-new Israeli incentive program, this note first examines the success rates of these programs as potentially viable alternatives to traditional organ donation models. Next, this note argues that adopting these programs at the federal level will not violate the United States constitution under First Amendment and Fourteenth Amendment challenges, …

Negative Lawmaking Delegations: Constitutional Structure And Delegations To The Executive Of Discretionary Authority To Amend, Waive, And Cancel Statutory Text, R. Craig Kitchen

UC Law Constitutional Quarterly

In Clinton v. City of New York, the Supreme Court suggested congressional delegation of the power to amend, waive, or cancel statutory text violates bicameralism and presentment. This Article reexamines the Court's holding and shows that it has had little impact on judicial review of lawmaking delegations. The article then proposes an analytical framework for lawmaking decisions by categorizing them as either positive or negative delegations. It discusses the different types of negative delegations that congress can make, thereby granting the executive partial or total power to negate statutory text. The article then discusses how such negative delegations are constitutionally …

Quill's Call To Action: Will Congress Update Commerce Clause Nexus Requirements In Light Of Cloud Computing, Molly Schneider

UC Law Constitutional Quarterly

In Quill Corp. v. North Dakota, the Supreme Court emphasized that Congress is the proper authority to promulgate rules governing state taxation of interstate commerce. Despite this confirmation of authority, Congress has only successfully set a uniform state sales-and-use tax regime once with the Mobile Telecommunication Sourcing Act. Since the enactment of the MTSA, states have continually attempted to adapt tax regimes to new technologies, but have been severely limited by the Commerce Clause.

One area of particular focus has been cloud computing due to the industry's complicated web of locations. This note will discuss whether states need Congress to …

San Francisco's Checkout Bag Fee Ordinance And The Problem Of Proposition 26, Nicole Misha Goodwin

UC Law Constitutional Quarterly

In 2012, the San Francisco Board of Supervisors enacted the county's Checkout Bag Ordinance. Designed to decrease the use of disposable checkout bags and mitigate their harmful environmental effects, the ordinance requires all retailers to charge ten cents per paper or reusable checkout bag distributed to their customers. Fifteen months later, the California electorate passed Proposition 26 that added a definition of a "tax" to the California Constitution to recategorize certain regulatory fees. The reclassification will undoubtedly affect state and local governments' ability to impose certain regulatory fees without prior authorization by the electorate.

Using the Proposition 26 framework to …

Something To [Lex Loci] Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

UC Law Constitutional Quarterly

The new question relating to same sex marriage is not "who decides," but who is married. The federal government and many states have historically relied on the place-of-celebration rule, or lex loci celebrationis, to determine who is married. This ensures that married couples do not lose their marital status simply because they travel across state borders or relocate to a new home. Under lex loci celebrationis, if the marriage is legally valid where it was celebrated, then the marriage is legally valid everywhere else.

This article address the most pressing unresolved question of United States v. Windsor: Will the federal …

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Resolution Vi: The Virginia Plan And Authority To Resolve Collective Action Problems Under Article I, Section 8, Kurt T. Lash

Law Faculty Publications

The article presents on the general principles of limited enumerated federal power followed by the courts of the U.S. used for determining scope of national authority. The declaration of Resolution VI under which the U.S. Congress has the power for regulating collective action problems having national importance is discussed. The historical evidences of Resolution VI, the debates related to ratification and the errors in historical facts are also discussed.

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

Law Faculty Publications

This Essay explores whether President Lincoln's Emancipation Proclamation, freeing all slaves held in areas designated by the President to be under rebellion onJanuary 1, 1863, could be justified as an exercise of his power under the Take Care Clause. Part I of this Essay discusses the legislation that preceded the Emancipation Proclamation. Part II discusses the Emancipation Proclamation. Part III discusses the Take Care Clause and how it might authorize significant parts of the Emancipation Proclamation, if not the entire document.

The Landmark That Wasn't: A First Amendment Play In Five Acts Case Study And Commentaries, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court’s decision in Dun & Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent …

Paid Organ Donations And The Constitutionality Of The National Organ Transplant Act, John A. Robertson

UC Law Constitutional Quarterly

Organ transplant is a well-established medical therapy that saves thousands of lives. Yet many people who could survive with transplants die on waiting lists. With ever expanding indications for transplant, the supply of organs will never meet demand. But many more organ transplants could occur than do.

Under the National Organ Transplant Act ("NOTA"), the United States government prohibits the use of money in any form of organ donation scheme. By making it a federal felony to provide valuable consideration for organ donations, many proposed organ brokerages and exchanges have not been allowed to come to fruition. Valuable consideration includes …

Thomas Jefferson's Establishment Clause Federalism, David E. Steinberg

UC Law Constitutional Quarterly

Constitutional history can be used or misused. Historical analysis can provide insight into provisions shrouded in opaque language. But constitutional history also can be used to mislead, painting an intentionally distorted picture of people or events.

In the vast majority of its opinions analyzing the First Amendment's Establishment Clause that also include a historical account from Thomas Jefferson, the Supreme Court has consistently stated that Jefferson viewed the Establishment Clause as the embodiment of the church-state separation principle. However, if Jefferson were alive today and could read the Court's account of his views, he would be horrified. A distrust of …

Bans On Sex-Selective Abortions: How Far Is Too Far, Annie Moskovian

UC Law Constitutional Quarterly

"My mother in law always tells me I am useless because I do not have a son. If I do not have a son, she says, they will send me back to India." These words come from a qualitative study on son preference and fetal sex selection among Indian immigrants in the United States in which women expressed the pressure to have sons from in-laws and husbands. Census studies also indicate that many Chinese and Korean Americans terminate pregnancies if the fetus is of the undesired sex.

Further, studies imply that sex selection is not a practice that can be …

If Skilling Can't Get A Change Of Venue, Who Can? Salvaging Common Law Implied Bias Principles From The Wreckage Of The Constitutional Pretrial Publicity Standard, Jordan Gross

Faculty Law Review Articles

Fifty years ago, the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s right to an impartial jury that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with …

The United States Constitutional History Through The Barristers And Political Theories Of The Middle Temple Inn Of Court, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Footholds Of Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.