Constitutional Law Commons^™

Book Review: Court-Packing And Legal Creation - Symposium: History And Meaning Of The Constitution, Sheldon Gelman

Cleveland State Law Review

Review of FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle over the New Deal by James F. Simon. New York: Simon & Schuster. 2012

Supplemental Pay Or Supplemental Power?: Why The Ohio General Assembly's Compensation Structure Unconstitutionally Centralizes Power In The General Assembly Leadership, Frank Camardo

Cleveland State Law Review

In the Ohio House and Senate, committee chairpersons and other select members of legislative committees receive a supplemental salary, in addition to their base legislator pay, for their service on the committee. The Ohio Constitution, however, mandates that legislator pay be fixed by law (hereinafter “Fixed Compensation Provision”) and that no changes to compensation take place during the term (hereinafter “No Change Provision”). Because the Speaker of the House and the Senate President have the power to discretionarily appoint and remove committee chairpersons during the term, compensation necessarily changes during the term of a removed chairperson. Such in-term changes violate …

State Prisoners With Federal Claims In Federal Court: When Can A State Prisoner Overcome Procedural Default?, Megan Raker

Maryland Law Review

No abstract provided.

Kaley V. United States: Sanctifying Grand Jury Determinations And Marginalizing The Right To Counsel Of Choice, Laura Merkey

Maryland Law Review

No abstract provided.

Review Of Taming Globalization: International Law, The U.S. Constitution, And The New World Order, Kristina Daugirdas

Reviews

According to Julian Ku of Hofstra University School of Law and John Yoo of the University of California, Berkeley, School of Law, globalization poses a significant threat to the U.S. constitutional system of governance. In their recent book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, they seek to reassure readers that this threat can be deflected. If their prescriptions are followed, Ku and Yoo argue, the United States can avoid constitutional problems while continuing to reap the benefits of international cooperation. Ku and Yoo insist that they are neither trying to stop globalization …

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein

Michigan Journal of Gender & Law

The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem …

The U.S. Supreme Court Sidetracks Idaho Implied Consent Law, Richard Henry Seamon

Articles

No abstract provided.

Commercial Religious Exercise: Translating Commercial Speech Doctrine To The Free Exercise Clause, Danieli Evans

Articles

The Patient Protection and Affordable Care Act and implementing regulations require for-profit businesses with more than fifty employees to include contraceptive products in their health care coverage for employees. Throughout the country, privately held corporations and their owners challenged this requirement on the grounds that it violates the Religious Freedom Restoration Act (RFRA), which states that the government shall not “substantially burden” a religious practice unless the regulation is “the least restrictive means” of serving a “compelling governmental interest.” The employers argued that requiring them to include contraceptives in employees’ health coverage substantially burdened their religious opposition to using certain …

Second Amendment Decision Rules, Non-Lethal Weapons, And Self-Defense, A.J. Peterman

Marquette Law Review

General public debate about the Second Amendment has focused almost exclusively on the regulation of firearms. After Heller and McDonald, the scope of the Second Amendment’s protection has been hotly contested. One area of the Second Amendment that has been less discussed is the decisional rules that would govern non-firearms and levels of protection based on location. This Comment proposes two Second Amendment Constitutional decisional rules. Broadly, this Comment suggests that the “common use” test for “arms” should be modified for the development of new arms, such as non-lethal weapons, that are subject to the Second Amendment. The proposed …

Reviving Legislative Generality, Evan C. Zoldan

Marquette Law Review

The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to a variety of social harms, including corruption and the exacerbation of social inequality. But the Court’s weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that …

The Church Of Animal Liberation: Rights As 'Religion' Under The Free Exercise Clause, Bruce Friedrich

Animal Law Review

In this Article, I contend that a belief in animal liberation qual­ifies as religion under the Free Exercise Clause jurisprudence of the United States Constitution. Thus, every time a prison warden, public school teacher or administrator, or government employer refuses to accommodate the ethical belief of an animal liberationist, they are infringing on that person's relig­ious freedom, and they should have to satisfy the same consti­tutional or statutory requirements that would adhere were the asserted interest based on more traditional religious exercise. One possible solution to the widespread violations of the First Amendment rights of animal liberationists would be the …

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.

Federalism, Treaty Implementation, And Political Process: Bond V. United States, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarcz

Faculty Scholarship

This article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. To that end, the article differentiates defaults caused by insolvency from defaults caused by illiquidity. The latter, which are potentiated by rollover risk (the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt), are not only plausible but have occurred in the past. Moreover, the ongoing controversy over the federal debt ceiling and the rise of the shadow-banking system make these types of defaults …

The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati

Faculty Scholarship

At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant” argument is right without understanding the complex ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected …

Bypassing Congress On Federal Debt: Executive Branch Options To Avoid Default, Steven L. Schwarcz

Faculty Scholarship

Even a “technical” default by the United States on its debt, such as a delay in paying principal or interest due to Congress’s failure to raise the federal debt ceiling, could have serious systemic consequences, destroying financial markets and undermining job creation, consumer spending, and economic growth. The ongoing political gamesmanship between Congress and the Executive Branch has been threatening — and even if temporarily resolved, almost certainly will continue to threaten — such a default. The various options discussed in the media for averting a default have not been legally and pragmatically viable. This article proposes new options for …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

Good Cause Requirements For Carrying Guns In Public, Joseph Blocher

Faculty Scholarship

No abstract provided.

The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne

Faculty Scholarship

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological …

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs

Faculty Scholarship

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

Common Sense And Key Questions, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young

Faculty Scholarship

No abstract provided.

Saving Originalism’S Soul, Stephen E. Sachs

Faculty Scholarship

No abstract provided.

After Recess: Historical Practice, Textual Ambiguity, And Constitutional Adverse Possession, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a …