Constitutional Law Commons^™

Murphy V. Ncaa: The Supreme Court's Latest Advance In Chemerinsky's "Federalism Revolution", Jonathan O. Ballard Jr.

Loyola of Los Angeles Law Review

No abstract provided.

Let Them Eat Cake: Why Public Proprietors Of Wedding Goods And Services Must Equally Serve All People, Labdhi Sheth, Molly Christ

Loyola of Los Angeles Law Review

No abstract provided.

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Arming Public Protests, Timothy Zick

Faculty Publications

Public protests have become armed events, with protesters and counter-protesters openly carrying firearms—generally pursuant to state law. Many view the presence of firearms at protest events as wholly incompatible with the exercise of First Amendment free speech and assembly rights. Although the Supreme Court has yet to decide whether there is a Second Amendment right to openly carry firearms in public, all but a small handful of states in the United States provide some legal protection for open carry. Taking the law as it currently stands, this Article provides a comprehensive assessment of the options available to officials who seek …

Discovery Cost Allocation, Due Process, And The Constitution's Role In Civil Litigation, Martin H. Redish

Vanderbilt Law Review

The issue of discovery cost allocation, long ignored by both courts and scholars, has become something of a cause celebre in the last few years. An article which I coauthored on the subject was part of that renewed interest.' In 2011, my former student, Colleen McNamara, and I wrote an article urging a dramatic change not only in the manner of how discovery costs are allocated, but an entirely new way of understanding the concept of discovery costs. 2 Since the original promulgation of the Federal Rules of Civil Procedure in 1938, it has been universally assumed that discovery costs …

Property, Persons, And Institutionalized Police Interdiction In Byrd V. United States, Eric J. Miller

Loyola of Los Angeles Law Review

During a fairly routine traffic stop of a motorist driving a rental car, two State Troopers in Harrisburg, Pennsylvania, discovered that the driver, Terrence Byrd, was not the listed renter. The Court ruled that Byrd nonetheless retained a Fourth Amendment right to object to the search. The Court did not address, however, why the Troopers stopped Byrd in the first place. A close examination of the case filings reveal suggests that Byrd was stopped on the basis of his race. The racial feature ofthe stop is obscured by the Court’s current property-basedinterpretation of the Fourth Amendment’s right to privacy.

Although …

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …

Clinton V. Jones: The King Has No Clothes (Nor Absolute Immunity To Boot), Christopher James Sears

West Virginia Law Review

No abstract provided.

October 30, 2018: Executing Robert Bowers, Bruce Ledewitz

Hallowed Secularism

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

October 28, 2018: The Shootings In Pittsburgh, Bruce Ledewitz

Hallowed Secularism

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

Introduction To The "Lockett V. Ohio At 40 Symposium": Rethinking The Death Penalty 40 Years After The U.S. Supreme Court Decision, Margery B. Koosed

ConLawNOW

Professor Koosed provides an introduction to the symposium on the fortieth anniversary of the U.S. Supreme Court’s decision in Lockett v. Ohio, which discusses the backstory and import of the case. The decision in Lockett laid the framework for narrowing application of the death penalty by overturning Ohio’s 1974 era death penalty law, and heralding the significance and breadth of mitigating factors that must be considered by jurors and judges making the life or death decision in the penalty phase of capital cases, and tapped in to issues of disproportionate sentencing (those decided and yet to be).

October 23, 2018: "Because He Doesn’T Exist", Bruce Ledewitz

Hallowed Secularism

Blog post, "Because He doesn’t exist" discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 20, 2018: Absurdities Of Anti-Religious Bias, Bruce Ledewitz

Hallowed Secularism

Blog post, “Absurdities of Anti-Religious Bias“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 18, 2018: Rhodri Lewis Responds, Bruce Ledewitz

Hallowed Secularism

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

Alqasem V. Ministry Of The Interior And The Hebrew University, Neal Hendel, Anat Baron, Uzi Vogelman

Translated Opinions

Facts:

This was a request for leave to appeal the judgment of the Tel Aviv-Jaffa District Court sitting as an Administrative Affairs Court denying the Petitioner’s appeal against the judgment of the Tel Aviv Appeals Tribunal that denied the her appeal of the decision of the Minister of the Interior to cancel the her visa and prevent her entrance into Israel due to her activities in support of boycotting the State of Israel.

The Petitioner had recently completed her studies toward a B.A. at the University of Florida and was accepted into a graduate program in human rights and transitional …

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends …

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds …

We Are All Farkhunda: An Examination Of The Treatment Of Women Within Afghanistan's Formal Legal System, Ashley Lenderman

Indiana Journal of Constitutional Design

In this paper, I will examine three cases of violence against women that went through the Afghan formal legal system: the case of Farkhunda, the Paghman district gang rape case, and the case of Sahar Gul. In the first Part, I will discuss the formal legal system framework on which the cases are based. In the second Part, I will discuss the cases in detail. In the third Part, I will describe neo-liberal, reformist, and neo-fundamentalist approaches to interpretation of Islamic law, and I will then draw out pieces of the decisions from the three cases that closely match these …

Lockett Symposium: Is The Supreme Court's Command On Mitigating Circumstances A Spoonful Of Sugar With A Poison Pill For The Death Penalty?, Jeffrey L. Kirchmeier

ConLawNOW

This Article addresses how Lockett v. Ohio and the Supreme Court’s jurisprudence on mitigating factors in capital cases established a more humane death penalty while at the same time undermining the death penalty system. The Court’s emphasis on the constitutional importance of individualized sentencing has, in effect, helped return the U.S. death penalty system to an unconstitutional arbitrary and discriminatory system.

After the U.S. Supreme Court effectively struck down the existing death penalty statutes in 1972, state legislatures responded with new statutes designed to try to make a fairer and less arbitrary death penalty. When the Supreme Court reviewed these …

Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler

ConLawNOW

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led …

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year …

Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis

ConLawNOW

Professor Davis, who was one of the lawyers handling Sandra Lockett’s Supreme Court case, describes Ms. Lockett's courage under threat of execution and explains why principles of respect for human dignity should have forbidden placing her in that horrifying position.

Lockett Symposium: The Other Lockett, Dennis Balske

ConLawNOW

Sandra’s case was perfect for the New York Times. James’s makes for choice tabloid reading.

Few people realize that two Locketts were involved in the famous Lockett case–Sandra and her brother, James. Sandra is famous because she is the Lockett in the United States Supreme Court decision. James is unknown because the Ohio Supreme Court remanded his case to Akron for a new trial.

Sandra lost her direct appeal in the Ohio Supreme Court. Eventually the United States Supreme Court granted review and reached its all-important decision striking down Ohio’s death penalty statute and mandating that capital defendants be permitted …

October 16, 2018: Pittsburgh Foundation Grant, Bruce Ledewitz

Hallowed Secularism

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

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless …

Silencing State Courts, Jeffrey Steven Gordon

William & Mary Bill of Rights Journal

In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First …

A Historical Examination Of The Constitutionality Of The Federal Estate Tax, Henry Lowenstein, Kathryn Kisska-Schulze

William & Mary Bill of Rights Journal

No abstract provided.

The Religious Freedom Restoration Act At 25: A Quantitative Analysis Of The Interpretive Case Law, Lucien J. Dhooge

William & Mary Bill of Rights Journal

No abstract provided.