Constitutional Law Commons^™

A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian

Washington University Undergraduate Law Review

The central question presented in this paper is whether specialty license plates constitute government speech, and are thus subject to disapproval by the Board of the Texas Department of Motor Vehicles. The core concerns reviewed in this research, largely focus on defining whose speech specialty license plates are. The purpose is to investigate and analyze the precedent established as a result of a recent case, Walker v. Texas Division, Sons of Confederate Veterans. The paper thoroughly reviews the arguments made in the majority opinion, as well as those of the dissenting opinion, with an interdisciplinary approach. The argument presented …

Originalism And Same-Sex Marriage, Steven G. Calabresi, Hannah M. Begley

University of Miami Law Review

This article examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Habeas Corpus And The Exceptions Clause : Exploring Intergenerational Institutional Struggle., Kevin Grout

College of Arts & Sciences Senior Theses

No abstract provided.

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

Clarence Thomas, Fisher V. University Of Texas, And The Future Of Affirmative Action In Higher Education, Scott D. Gerber

University of Richmond Law Review

No abstract provided.

Opinion: Testimony Concerning The Separation Of Powers And The Judiciary, Lumen N. Mulligan

Faculty Works

Separation of powers and the judiciary - or judicial independence as it is often termed - "refers to the need for courts that are fair and impartial when reviewing cases and rendering decisions, ... [which] requires freedom from outside influence or political intimidation." As recognized by President Ronald Reagan, and scores upon scores of our nation's most preeminent leaders, "[the] independence of the courts from improper political influence is a sacred principle, .... It must always be guarded."

This cornerstone of our free society - judicial independence - has been the bedrock of Kansas' republican form of government since the …

Coming To Grips With The Ethical Challenges For Capital Post-Conviction Representation Posed By Martinez V. Ryan, John H. Blume, W. Bradley Wendel

Cornell Law Faculty Publications

In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” …

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

Journal Articles

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It …

Truth Or Doubt? An Empirical Test Of Criminal Jury Instructions, Michael D. Cicchini, Lawrence T. White

University of Richmond Law Review

Part I of this article briefly discusses the concept of proof beyond a reasonable doubt, along with its importance to individuals and society generally. Part II surveys some of the truth-related language used in multiple state and federal jurisdictions. It also examines the constitutional problems created by this language and discusses courts' inadequate responses to these problems.

Part III explains our controlled experiment, including our hypotheses, study design, and empirical findings. Part IV discusses these findings and their significance and argues that courts should immediately terminate their use of truth-based jury instructions so that our constitutional guarantees are fulfilled. Finally, …

The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger

University of Richmond Law Review

No abstract provided.

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …

When Can A State Sue The United States?, Tara Leigh Grove

Faculty Publications

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

Faculty Publications

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Faculty Publications

No abstract provided.

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law Review

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …

Inventing Equal Sovereignty, Leah M. Litman

Michigan Law Review

The Supreme Court’s 2013 decision in Shelby County v. Holder relied on the “fundamental principle” and “historic tradition” of equal sovereignty to hold one of the Voting Rights Act’s key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity—both to establish the contours of the equal sovereignty doctrine and to evaluate whether it is a sound rule of constitutional federalism. The principle of equal sovereignty, as initially articulated by courts and subsequently …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …

We All Stand Together: The Role Of The Association Of Asian Constitutional Courts And Equivalent Institutions In Promoting Constitutionalism, Maartje De Visser

Research Collection Yong Pung How School Of Law

This article critically evaluates the interplay among courts with constitutional jurisdiction in Asia. This is done in the specific context of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The article finds that the AACC has to date made only a nominal contribution to cultivating inter-court relations in furtherance of common goals and advances the claim that its members ought to rectify this state of affairs. On the one hand, transnational judicial alliances have instrumental value for participating courts in the discharge of their mandate. On the other hand, the AACC can be a useful conduit in nurturing …

April 30, 2016: The Redemption Of American Public Life, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Redemption of American Public Life“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Peradilan Etik Dan Etika Konstitusi [Court Of Ethics And Constitutional Ethics], Qurrata Ayuni

Indonesia Law Review

This book presents an idea on making a court of ethics in Indonesia, written by Indonesia’s famous scholar in Constitutional Law, Prof. Dr. Jimly Asshiddiqie. This book has brought new perspectives by advancing the existence of law of ethics in the domination of rule of law.

Judicial Review On Administrative Action: Reflection On The Bank Century Bailout Policy, Lily Evelina Sitorus

Indonesia Law Review

Accountability is the key to good governance. In global administrative law, every policy made should be accountable. The given law should be accessible to the public. At the time of the global financial crisis, many countries did not have the necessary rules to solve the problems that arose. In Indonesia, the government’s decision to bail out Bank Century has remained controversial up to the present time. The need for a comprehensive law dealing with economic, political and social factors should be considered. The Indonesian Law regarding Government Administration provides for the code of conduct for government action. An entire chapter …

Quasi-Constitutional Protections And Government Surveillance, Emily Berman

BYU Law Review

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by …

When A Promise Is Not A Promise: Georgia's Law On Non-Compete Agreements, As Interpreted By The Eleventh Circuit In Keener V. Convergys Corporation, Gives Rise To Comity And Federalism Concerns, Christopher D. David

Georgia Journal of Law & Technology

No abstract provided.

Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin

Georgia Journal of Law & Technology

No abstract provided.

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

ConLawNOW

The First Amendment severely disfavors content-based restrictions on speech in public areas. In its 2015 decision in Reed v. Town of Gilbert, the Supreme Court clarified the test for determining whether a speech restriction is content-based, ratcheting up the number of laws subject to strict scrutiny. While this decision has been criticized by some, I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. I use anti-panhandling ordinances from three local jurisdictions—the …

"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko

Georgia Journal of Law & Technology

No abstract provided.

Losing The Forest Among The Trees In The Festo Saga-Rationalizing The Doctrine Of Equivalents And Prosecution History Estoppel In View Of The Historical Justifications For Patent Protection, Ryan Thomas Grace

Georgia Journal of Law & Technology

No abstract provided.

The Teaching Of International Law, Myres S. Mcdougal

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Policy And The Government Legal Adviser, Henry Darwin

Georgia Journal of International & Comparative Law

No abstract provided.