Constitutional Law Commons^™

Originalism’S Bite, William Baude, Stephen E. Sachs

Faculty Scholarship

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Brief Of Amici Curiae 56 Professors Of Law And Economics In Support Of Petition Of Writ Of Certiorari, John R. Allison, Margo Bagley, James Bessen, Jeremy Bock, Daniel H. Brean, Michael A. Carrier, Michael W. Carroll, Bernard Chao, Tun-Jen Chiang, Colleen V. Chien, Andrew Chin, Robert Cook-Deegan, Md, Rochelle Dreyfuss, Dr. Dieter Ernst, Samuel F. Ernst, Robin C. Feldman, Lee Fleming, Brian Frye, William Gallagher, Shubha Ghosh, Eric Goldman, Bronwyn H. Hall, Yaniv Heled, Christian Helmers, Joachim Henkel, Susan Helper, Tim Holbrook, Herbert Hovenkamp, William Hubbard, Dr. Xavier Jaravel, Dennis S. Karjala, Peter Lee, Mark A. Lemley, David K. Levine, David S. Levine, Doug Lichtman, Yvette Joy Liebesman, Orly Lobel, Brian Love, Phil Malone, Michael J. Meurer, Dr. Shawn Miller, Matthew Mitchell, Susan Barbieri Montgomery, Sean Pager, Arti K. Rai, Jacob H. Rooksby, Jorge R. Roig, Matthew Sag, Pamela Samuelson, Ana Santos Rutschman, Lea Bishop Shaver, Toshiko Takenaka, John L. Turner, Jennifer Urban, Eric Von Hippel

Faculty Scholarship

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant …

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Continuity And The Declaration Of Independence, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in …

Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison

Faculty Scholarship

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …

California Constitutional Law: The Right To An Adequate Education, Anne D. Gordon

Faculty Scholarship

Plaintiffs' victory in Vergara v. State, a case about teacher evaluation and employment regulations, has thrust the issue of educational adequacy into the spotlight in California. Campaign for Quality Education v. State, a case based on the California Constitution's education clause, has been fully briefed before the California Supreme Court and is waiting to be set for argument. These cases require California courts to again look to the constitution to determine what the right to education means. Although the California Supreme Court found this right fundamental over forty years ago, no supreme court decision has yet articulated whether this right …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Lethality, Public Carry, And Adequate Alternatives, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

This Article explores the relationship between lethality and the right to bear arms, and considers how that relationship might be shaped by the availability of non-lethal alternative weapons. Prior scholarship has asked whether the Second Amendment includes a right to carry non-lethal “Arms.” An important set of related questions remains: does the Second Amendment necessarily include a right to arm oneself publicly with lethal force, if non-lethal alternatives are available? And how should one evaluate the adequacy of those alternatives?

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.

Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman

Faculty Scholarship

This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

UC Law Constitutional Quarterly

This article offers the first comprehensive history of the marriageequality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality's advancement to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance, and to Brown and …

Youthfulness Matters: A Call To Modernize Juvenile Waiver Statutes, Chelsea Ellen Heaney

UC Law Constitutional Quarterly

The fundamental values that underlie the juvenile justice system have developed and changed since its inception in 1899. A system that was once focused on rehabilitating and protecting troubled youth, has developed into a system focused on punishing and confining youth. A decade of increased juvenile crime rates in the United States from the mid-1980s to the mid- 1990s, led many states to change their policies regarding the treatment of juvenile delinquents. Specifically, between 1992 and 1994, forty-nine out of the fifty states broadened or enacted legislation making it easier for juveniles to be tried as adults. Automatic and mandatory …

Must Courts Respect Hidden Legislative Bargains, Brendan Selby

UC Law Constitutional Quarterly

The most complete and sophisticated justification for a strong form of textualism is grounded in the need to preserve legislative compromise. I call this justification the "Bargaining Argument." Its primary expositor is Professor John Manning, the leading academic textualist. The thrust of the Bargaining Argument is that, because express provisions of the Constitution evince an intent to give political minorities the right to insist upon compromise as the price of assent, courts should read the phrase "the judicial power" in Article III as prescribing an interpretive method that furthers this intent. While the general inference concerning minority rights is sound, …

The Right To Education For Unaccompanied Minors, Jeanette M. Acosta

UC Law Constitutional Quarterly

In response to the increase of unaccompanied minors seeking refuge in the United States in 2014, officials within federal, state, and local institutions readied themselves to receive and serve a greater number of child migrants in detention facilities, shelters, immigration courts, and public schools. While attention has been paid to the need for legal representation of unaccompanied minors and the need to end the inhumane detention of children, this Note reveals the state of educational opportunities and services provided for unaccompanied minors in detention facilities, shelters, and public schools. This Note looks to the role education plays in the lives …

Out Of The Shadows: Deferred Action For Childhood Arrivals, Deferred Action To Parents Of Americans And Lawful Permanent Residents, And Executive Prosecutorial Discretion In Immigration Law, Olga Y. Kuchins

UC Law Constitutional Quarterly

Currently, more than eleven million undocumented immigrants live and work in the United States unlawfully. The Administration's effort to bring undocumented immigrants out of the "shadows" under the deferred action programs, while constitutional, is merely a Band-Aid-a temporary solution to Congress' unsuccessful efforts to pass legislation that addresses the issue of undocumented immigrants head on. This Note contextualizes the Obama Administration's deferred action programs within the larger framework of prosecutorial discretion in immigration law.

Section I lays the foundation for the Administration's decision to implement Deferred Action for Childhood Arrivals ("DACA") by discussing some of the major developments in United …

The 2016 Election And The Future Of Constitutional Law: The Lessons Of 1968, Earl M. Maltz

UC Law Constitutional Quarterly

The upcoming presidential election of 2016 may very well become a pivotal moment in the evolution of American constitutional doctrine. Given Justice Scalia's untimely passing and the ages of a number of the sitting justices, the next President could easily have the opportunity to choose several new members of the Court. Moreover, because the Court is currently divided almost equally along ideological lines, even a single appointment could have the effect of turning the overall orientation of the Court's decisions sharply to either the right or the left.

To illustrate the effect that a single election can have on the …

Deciding With Dignity: The Terminally Ill Patient's Right To Information About The California End Of Life Option Act, Christine Sung

UC Law Constitutional Quarterly

For decades, states across the country have been entertaining concept of physician aid-in-dying, or more commonly known as Death with Dignity. In June 2016, California became the fifth state to legalize physician aid-in-dying, enabling qualified California citizens to have the option to choose a peaceful and autonomous death. However, many qualified patients may not be aware of this option unless informed. This is where physician-patient communication becomes vital to the patient's autonomy. This Note argues that terminally ill patients choosing what end of life option to take (hopsice, palliative care, etc.) should be informed about the California End of Life …

An Unconventional Approach To Reviewing The Judicially Unreviewable: Applying The Dormant Commerce Clause To Copyright, Donald P. Harris

Kentucky Law Journal

No abstract provided.

Evading The Treaty Power?: The Constitutionality Of Nonbinding Agreements, Michael D. Ramsey

FIU Law Review

No abstract provided.

Government By Blog Post, Josh Blackman

FIU Law Review

No abstract provided.

Aging Disgracefully: Do Economic Laws Remain Rational In Spite Of Changed Circumstances?, Johanna Talcott

FIU Law Review

No abstract provided.

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

To Catch A Terrorist: The Improper Use Of Profiling In U.S. Post-9/11 Counterterrorism, Kamillia Crawford

Honors Undergraduate Theses

The attacks of September 11, 2001 (9/11) caused thousands of deaths, national and global panic, and immediate action by the federal government to protect the borders of the United States of America (USA) from terrorism. In response to these attacks, the United States (U.S.) government enacted laws for law enforcement agencies to protect against terrorist activities. Law enforcement agencies are effective in combating terrorism, but their measures contain a major flaw - the improper use of race in profiling to address national security and public safety concerns. Racial profiling is an ineffective measure for preventing terrorism. There are solutions to …

Trump University And Presidential Impeachment, Christopher L. Peterson

Utah Law Faculty Scholarship

Donald J. Trump (“Trump”), the Republican Party’s 2016 nominee for President of the United States, currently faces three lawsuits accusing him of fraud, false advertising, and racketeering. These ongoing cases focus on a series of wealth seminars Trump called “Trump University” which collected over $40 million from consumers seeking to learn Trump’s real estate investing strategies. Although these consumer protection cases are civil proceedings, the underlying legal elements in several counts plaintiffs seek to prove run parallel to the legal elements of serious crimes under both state and federal law. Somehow in the cacophony of the 2016 presidential campaign, no …

Still Not Equal: A Report From The Red States, Clifford Rosky

Utah Law Faculty Scholarship

This chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.