Constitutional Law Commons^™

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …

In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.

San Diego Law Review

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …

Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver

San Diego Law Review

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral …

The Legal Foundations Of White Supremacy, Erika Wilson

DePaul Journal for Social Justice

No abstract provided.

August 15, 2018: The Catholic Church Child Abuse Scandal Comes Out, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Catholic Church Child Abuse Scandal Comes Out“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rwu First Amendment Blog: David A. Logan's Blog: Infowars Goes To War With The First Amendment 08-15-2018, David A. Logan

Law School Blogs

No abstract provided.

Readings In Parallel Judiciaries, Paul E. Salamanca

Law Faculty Books and Chapters

No abstract provided.

Racing On Two Different Tracks: Using Substantive Due Process To Challenge Tracking In Schools, Katarina Wong

Duke Journal of Constitutional Law & Public Policy Sidebar

Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this …

Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun

Washington and Lee Law Review Online

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.

August 12, 2018: Decent Republicans, Especially Law Professors, Have Got To Stop Voter Suppression, Bruce Ledewitz

Hallowed Secularism

Blog post, “Decent Republicans, Especially Law Professors, Have Got to Stop Voter Suppression“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 10, 2018: The Lynne Kelly Quote, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Lynne Kelly Quote“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Chicago-Kent Law Review

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, …

The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro

Chicago-Kent Law Review

No abstract provided.

Above Politics: Congress And The Supreme Court In 2017, Jason Mazzone

Chicago-Kent Law Review

The Supreme Court figured prominently in the November 2016 elections because of the vacancy on the Court that resulted from the death of Justice Antonin Scalia. This Essay picks up the story by examining the place of the Supreme Court in national politics during 2017. It traces congressional efforts to respond to statutory and constitutional rulings by the Court as well as steps to regulate the operations of the Court and the work of the Justices. Although in 2017 Republicans and Democrats introduced numerous bills directed at the Court, these bills were generally modest in scope and, even so, did …

What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro

Chicago-Kent Law Review

Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …

Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon

Chicago-Kent Law Review

This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work of the regime politics …

The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt

Chicago-Kent Law Review

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.

In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically …

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. …

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collins Jr.

Chicago-Kent Law Review

Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …

The Consequences Of Citizens United: What Do The Lawyers Say?, Ann Southworth

Chicago-Kent Law Review

This Essay examines a polarized world of advocacy over campaign finance regulation in the Roberts Court. It considers what lawyers who filed party and amicus briefs in Citizens United v. Federal Election Commission have to say about the consequences of the decision. It shows that the lawyers generally agree about the ruling’s direct consequences but strongly disagree about whether those consequences are good or bad for the country and what lessons the public should draw. This Essay also explores the competing frames that these lawyers bring to questions about money in politics and their competing perspectives about government and where …

The First Amendment, The Second Amendment, And 3d Firearms, Timothy Zick

Popular Media

No abstract provided.

Judge Kavanaugh And Freedom Of Expression, Timothy Zick

Popular Media

No abstract provided.

August 4, 2018: What Can We Learn From The Failure Of Four Secular Democracies?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Can We Learn From the Failure of Four Secular Democracies?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 3, 2018: The Media As Enemy Of The People, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Media as Enemy of the People“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Granada-Ruiz V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 57 (Aug. 2, 2018) (En Banc), Sara Schreiber

Nevada Supreme Court Summaries

The Court concluded that double jeopardy did not prohibit the appellant’s retrial because he had implied consent to the district court’s declaration of a mistrial. Further, it held that the district court did not abuse its discretion in finding manifest necessity to declare a mistrial. Thus, the Court denied the appellant’s petition for a writ of mandamus that would direct the district court to grant his motion to dismiss and bar his re-prosecution.

Qualified Immunity And Fault, John F. Preis

Notre Dame Law Review

This Essay describes, critiques, and attempts to reform the role of fault in the defense of qualified immunity. It first argues, in Part I, that the defense does not properly assess fault because it immunizes persons who are at fault and holds liable persons who are not. The chief cause of this problem is that the defense is focused on an exceedingly narrow source of law: appellate judicial opinions. Appellate opinions are, not surprisingly, rarely read by government officers and, even when their substance is communicated to officers, they only comprise one of many factors that affect the blameworthiness of …

Foreword: The Future Of Qualified Immunity, Samuel L. Bray

Notre Dame Law Review

Qualified immunity is not an unqualified success. This defense, which protects officers from liability for damages unless they violate clearly established law, has attracted many critics. Some object to its weak historical foundations, while others find its policy effects to be perverse. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion …

Formalism, Ferguson, And The Future Of Qualified Immunity, Fred O. Smith Jr.

Notre Dame Law Review

This Essay explores whether formalism and accountability are compatible lodestars as we steer toward a new future for qualified immunity. Ultimately, I argue that two existing proposals would bring the doctrine closer to its text and history, mitigate against fragmentation in the law of constitutional torts, and narrow the rights-remedies gap when government officials violate the Constitution. One proposal, by John Jeffries, would create a fault-based system, where government officials and entities alike would be liable for constitutional violations that are both unreasonable and unconstitutional. Another proposal would render governmental employers’ liable for the acts of their agents.

Qualified Immunity At Trial, Alexander A. Reinert

Notre Dame Law Review

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

The Case Against Qualified Immunity, Joanna C. Schwartz

Notre Dame Law Review

If the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form. Ample evidence undermines the purported common-law foundations for qualified immunity. Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability. It almost never shields government officials from costs and burdens associated with discovery and trial in …