Constitutional Law Commons^™

State Interests And The Duration Of Abortion Rights, Randy Beck

Scholarly Works

Few areas of the Supreme Court’s jurisprudence have attracted as much attention in recent decades as the case law recognizing a constitutional right to terminate a pregnancy. Justice Anthony M. Kennedy has exercised more influence over the Court’s abortion jurisprudence than perhaps any other sitting Justice. His jointly authored plurality opinion in Planned Parenthood of Southeastern Pa. v. Casey reaffirmed the basic right to an abortion first recognized in Roe v. Wade, applying that right to regulations effective from the outset of pregnancy. Later opinions, particularly Justice Kennedy’s dissent in Stenberg v. Carhart and his majority opinion in Gonzales v. …

Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.

The Canadian Legal System, Steve Coughlan, Dale Darling

Articles, Book Chapters, & Popular Press

To really understand the influence of law on any activity, one must first understand the influences on the creation of law. This chapter sets the context for that discussion of law, by explaining the structural aspects of the legal system. Those aspects include the sources of law in Canada, the forms that law can take, and the parties who are primarily responsible for creating and shaping the law. This chapter will be structured around the discussion of four things: constitutional law, non-constitutional law, decision-makers in the legal system and, finally, a case study illustrating those features in action.

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Elizabeth Weeks Leonard, Nicole Huberfield, Kevin Outterson

Scholarly Works

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Reforming Affirmative Action For The Future: A Constitutional And Consequentialist Approach, Quinn Chasan

CMC Senior Theses

In my analysis of affirmative action policy, I began the search without having formed any opinion whatsoever. The topic was interesting to me, and after reading a mass of news editorials and their op-eds, I decided to take up the argument for myself. Other than the fact that I am a student, I have no stake in affirmative action policy. This paper relies primarily on the foremost half-dozen or so notable mismatch theory scholars, a close reading of an innumerable number of Supreme Court opinions, affirmative action related studies from higher education academics and policy institutes, and how historical executive …

The Secret "Kill List" And The President, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In Defense Of Scholars' Briefs: A Response To Richard Fallon, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now.

This response begins by describing the benefits of scholars’ briefs …

Symmetry For Symmetry’S Sake: Why Bose Does Not Require Independent Review Of A Trial Court’S First-Amendment-Favorable Findings Of Fact, Joshua Wurtzel

Cardozo Law Review de•novo

This Note argues that Bose does not support the symmetrical application of independent review of facts by appellate courts in First Amendment cases, regardless of whether the First Amendment claimant won or lost below. While symmetrical procedures and results may be desirable in most parts of the law, symmetry is not required where that symmetry will inhibit a greater constitutional interest. In the independent review context, symmetrical application of Bose results in the reversal of First Amendment wins that would otherwise be upheld under clear error review. This result is clearly antithetical to Bose’s purpose of enhancing First Amendment protections.

The Second Circuit’S En Banc Crisis, Mario Lucero

Cardozo Law Review de•novo

Part I of this Note is an empirical survey of the history of the en banc practice in the Second Circuit. First is an explanation of the en banc process and an examination of the hearings en banc that did take place and their outcomes in the Supreme Court. Second is a discussion of the mini en banc, which is the practice of circulating opinions that serves as an abbreviated substitute for full en banc hearings. Third is an examination of the myriad opinions that have been inspired by the denials of rehearing en banc, with special attention to the …

Docs Versus Glocks: N.R.A. Takes Aim At Florida Physicians’ Freedom Of Speech: Leaving Patients’ Health, Safety, And Welfare At Risk, Michelle Foody

Cardozo Law Review de•novo

Part I of this Note provides background on the Act at issue, its legislative history, the current status of the Supreme Court’s free speech jurisprudence, and it also introduces the constitutional interests at stake. Part II considers the constitutionality of the Act under the existing First Amendment standard and addresses the State’s assertions under the Second Amendment. Part III proposes that the Court’s standard ought to be recalibrated, taking into account the would-be listeners’ cognizable interest in the information. Part III goes on to legitimate the proposal by reconciling this new examination standard with existing free speech jurisprudence and justifications, …

Why Federal Rule Of Evidence 403 Is Unconstitutional, And Why That Matters, Kenneth S. Klein

Faculty Scholarship

It might seem at best quixotic, and at worst absurd, to assert that Federal Rule of Evidence 403-an iconic evidentiary exclusionary rule providing that relevant evidence can be excluded if it is too time-consuming or distracting-is unconstitutional. Yet, if the Sixth and Seventh Amendments to the Constitution-respectively preserving the right to a criminal jury and a civil jury- are to be taken seriously, that conclusion not only is plausible, but perhaps inescapable. More surprisingly and consequentially, deep thinking about the constitutionality of FRE 403 exposes that there may be constitutional concerns with large swaths of the Federal Rules of Evidence, …

What Is The Meaning Of Like: The First Amendment Implications Of Social-Media Expression, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Everywhere the Internet goes, new legal problems are sure to follow. As social media expands and infiltrates our daily lives, society must grapple with how to extend the law to modern situations. This problem becomes increasingly pressing as more and more of our social interactions take place online. For example, Facebook has become a colossal gathering place for friends, families, co-workers, frenemies, and others to disseminate their ideas and share information. Sometimes Facebook replaces old institutions; other times it augments them. Where once a neighbor would show allegiance to a political candidate by staking a sign on the front lawn, …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

All Faculty Scholarship

It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …

Surviving Medical Device Preemption Under 21 U.S.C. 360k: Clarifying Pleading Standards For Parallel Claims Following Twombly And Iqbal., Ashley Abraham Williams

Student Works

No abstract provided.

Whose Pregnancy Is It Anyway? The Intrusion Of Abortion-Related Informed Consent Laws And Compelled Medical Treatment On The Doctor-Pregnant Patient Relationship, Jennifer Jascoll

Student Works

No abstract provided.

Circuit Confusion: The Growing Divide On Whether Gant Applies To Non-Vehicular Searches Incident To Arrest, Patrick D. Messmer

Student Works

No abstract provided.

“V.I.P” Videographer Intimidation Protection: How The Government Should Protect Citizens Who Videotape The Police, David Murphy

Student Works

No abstract provided.

Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King

Vanderbilt Law School Faculty Publications

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit …

Response: Commandeering Information (And Informing The Commandeered), Anthony Johnstone

Faculty Law Review Articles

This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos's first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution.

The Freedom Of The Church (New Revised Standard Version), John D. Inazu

Scholarship@WashULaw

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”

The existing debate …

Virtual Assembly, John D. Inazu

Scholarship@WashULaw

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups. The Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal …

Neo-Democracy, National Security, And Liberty, David Cole

Georgetown Law Faculty Publications and Other Works

In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions …

Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited."S It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone--or a foreign government alone--can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase …

A Systematic Plan For Firearms Law Reform, Katherine L. Record, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Tragedy after tragedy has drawn the nation’s attention towards gun violence. Yet the murder of 20 school children in Newtown, CT has done more to drive the national dialogue on gun control than any preceding mass shooting, not to mention the endemic murderous violence that plagues city streets day in and out. President Obama has responded by calling on Congress to (1) close background check loopholes; (2) ban assault weapons and high-capacity magazines; and (3) improve mental health services. All of these measures are necessary to curb gun violence. Yet, in a nation with more firearms per capita than anywhere …

The Gravitational Force Of Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …

The Interpretation-Construction Distinction In Patent Law, Tun-Jen Chiang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims.

In this article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the …

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …

The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden

Georgetown Law Faculty Publications and Other Works

The term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.

Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …

Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.