Constitutional Law Commons^™

Kennedy’S Retirement: Despair Not, Go Out And Organize, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Combating Fake News In Social Media: U.S. And German Legal Approaches, Ryan Kraski

St. John's Law Review

(Excerpt)

When asking how fake news in social media can be combated under U.S. and German law, one must first take the systems’ most fundamental differences into consideration. U.S. law is characterized by its federal structure, the interaction of state laws often with the federal, U.S. Constitution, usage of pretrial discovery, as well as the role of juries in calculating damages. In contrast, Germany, as a civil law system, is characterized by its usage of separate legal actions to acquire information, lack of pretrial discovery, and broader array of available remedies, none of which allow for punitive damages. Through a …

June 26, 2018: Liberal Inconsistency And Arrogance, Bruce Ledewitz

Hallowed Secularism

Blog post, “Liberal Inconsistency and Arrogance“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 23, 2018: Best Paul Krugman Column Ever, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Best Paul Krugman Column Ever“ 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 Logan's Blog: Discovering Trump 06-22-2018, David A. Logan

Law School Blogs

No abstract provided.

Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry

ConLawNOW

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its decision in Packingham v. …

June 18, 2018: We Don’T Live In A Post-Credal Age—Only Power Lives In A Post-Credal Age, Bruce Ledewitz

Hallowed Secularism

Blog post, “We Don’t Live in a Post-Credal Age—Only Power Lives in a Post-Credal Age“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 15, 2018: What Is Wrong?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is Wrong?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 12, 2018: My Response To Ross Douthat Column On Free Speech Saving Us, Bruce Ledewitz

Hallowed Secularism

Blog post, “My Response to Ross Douthat Column on Free Speech Saving Us“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

Remedies Symposium: Contempt Fines And The Eleventh Amendment, John Sanchez

ConLawNOW

The Eleventh Amendment permits plaintiffs to recover prospective relief, for example, injunctive or declaratory relief, against a state. By contrast, the Eleventh Amendment bars recovery of retrospective relief against a state. The classic legal remedy of money damages is not recoverable. There are three types of contempts: civil compensatory and coercive contempt and criminal contempt. Civil compensatory contempt fines and criminal contempt fines are clearly retrospective in nature and so are not recoverable against a state. At the same time, civil coercive contempt fines are prospective and so should be recoverable against a state despite the Eleventh Amendment. Problems arise, …

Surprising Originalism: The Regula Lecture, Lawrence B. Solum

ConLawNOW

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Why Won't Free Speech Save Us?, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

June 11, 2018: The Nakba, Bruce Ledewitz

Hallowed Secularism

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

Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz

Akron Law Review

Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact …

The Icing On The Cake: How Background Factors Affect Law Faculty Predictions In Masterpiece Cakeshop, Michael Conklin

ConLawNOW

In this research, I explore law school faculty perceptions and predictions of the highly publicized Masterpiece Cakeshop case. I created a survey to assess how law faculty members’ prediction of the case may be affected by their area of instruction, background in business, religious involvement, political affiliation, same-sex union celebration participation, exposure to the case, and personal desired outcome for the case. I contacted over 800 law school faculty members, inviting them to participate in the research. The ninety-three completed responses provide insight into how law school faculty demographics may be indicators of their Supreme Court case predictions. Furthermore, different …

June 5, 2018: Yes, The President Can Pardon Himself And This Court Is Going To Vote For Religious Believers, Bruce Ledewitz

Hallowed Secularism

Blog post, “Yes, the President Can Pardon Himself and This Court is Going to Vote for Religious Believers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Francesco Palermo & Karl Kössler's Comparative Federalism: Constitutional Arrangements And Case Law (Book Review), James A. Gardner

Book Reviews

No abstract provided.

Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein

Law School Blogs

No abstract provided.

Why Did Liberals Join The Majority In The Masterpiece Case?, Katherine A. Shaw

Online Publications

It was no surprise that Justice Anthony Kennedy, who has cast the decisive vote in so many important Supreme Court cases, wrote Monday’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The court ruled in favor of a Colorado baker named Jack Phillips who, on religious grounds, had refused to make a wedding cake for a gay couple.

The Limits Of Constitutional Deferral: Lessons From The History Of The 2004 Constitution Of Afghanistan, Shamshad Parsarlay

Washington International Law Journal

In an important recent work, Rosalind Dixon and Tom Ginsburg noted that constitution writers regularly choose to defer to the future important questions of constitutional design. They argue that an “optimal” level of constitutional deferral might contribute to constitutional stability and help constitutions live longer. This Article argues that although constitution makers might choose to defer on many important questions of constitutional design to promote agreement, certain types of deferral might turn out to be counterproductive, and thus constitution writers’ choice to defer should be limited. The Article highlights that it is risky to defer to future legislatures the powers …

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

"Playing It Safe" With Empirical Evidence: Selective Use Of Social Science In Supreme Court Cases About Racial Justice And Marriage Equality, Russell K. Robinson, David M. Frost

Northwestern University Law Review

This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue …

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.

Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp—And Some Pathways For Change, Reva B. Siegel

Northwestern University Law Review

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that …

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, Mario L. Barnes, Erwin Chemerinsky

Northwestern University Law Review

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the …

The Utility Of Rational Basis Review, Nicholas Walter

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …

A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale

Minnesota Journal of Law & Inequality

Introduction & Abridged Transcript, The Summit for Civil Rights, November 10, 2017