Constitutional Law Commons^™

Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown

ExpressO

Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to …

Why Don’T More Public Schools Teach Sex Education? A Constitutional Explanation And Critique, Jesse R. Merriam

ExpressO

This Article questions why so many public schools do not teach any form of sex education. The answer proposed in this Article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.

To illustrate how these two premises might weigh in a school district’s decision not to teach sex education, …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

The Origin Of The Compelling State Interest Test And Strict Scrutiny, Stephen A. Siegel

ExpressO

This article argues that strict scrutiny did not originate in equal protection cases. Rather, it originated in the First Amendment in the late 1950s and early 1960s and migrated from there to the Equal Protection Clause in the late-1960s. The Article begins by discussing strict scrutiny analytically, situating it as one of many doctrines through which the Supreme Court gives heightened protection to favored constitutional interests. It then traces the origin of strict scrutiny’s compelling state interest requirement to the First Amendment. It shows that the compelling state interest test initially appeared in First Amendment litigation in 1957 and that …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

ExpressO

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia’s “textualist” philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven’s “Eroica” symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, …

The Headscarf As Threat? A Comparison Of German And American Legal Discourses, Robert A. Kahn

ExpressO

In this article I compare how American and German judges conceptualize the harm the headscarf poses to society. My examples are the 2003 Ludin case, in which the German Federal Constitutional Court held that the civil service, in the absence of state regulation, could not reject a woman from a civil service teaching position solely because she would not remove her headscarf while teaching; and State v. Freeman, in which a Florida court held that a woman could not pose for a drivers license wearing a garment (the niqab) that covered all of her face except her eyes. While judges …

If You Work For The Government, Then Shut Your Mouth: Garcetti V. Ceballos And The Future Of Public Employee Speech, Joseph E. Hardgrave

ExpressO

This article dismantles the majority's reasoning in Garcetti v. Ceballos. A theory is proposed to why the Court broke with prior precedence and the sweeping effect of the ambigous holding is examined.

Malibu Locals Only: "Boys Will Be Boys", Or Dangerous Street Gang? Why The Criminal Justice System's Failure To Properly Identify Suburban Gangs Hurts Efforts At Fighting Gangs, Brian William Ludeke

ExpressO

In the last several years, a group of youths calling themselves Malibu Locals Only or MLO has performed several violent crimes, intimidating many people in the area around Malibu, CA. Despite the gang-like appearance of these youths and their crimes, Los Angeles County Sheriff's Department officials insist that MLO is not a gang. This article examines MLO, its history, and its current state in the context of California anti-gang legislation.

The article theorizes that the criminal justice system's failure to call a group like MLO a gang while waging war on other groups, primarily in lower income, heavily minority areas, …

Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau

ExpressO

In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use in …

Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington

ExpressO

It is axiomatic that members of the United States military forces at all levels and throughout the course of the nation’s history have fought for the essential freedoms which underlie the constitution – key among them the suffrage right. Over the course of its history, the suffrage right has seen controversy and change, which mirrored the social and political issues and changed realities of the country. As the right to vote has been extended to encompass more citizens, so too has the ability to serve one’s country as part of the military. In recognition of the importance of the right …

Non-Judicial Precedent, Michael J. Gerhardt

ExpressO

This Article provides the first comprehensive analysis of the constitutional significance of non-judicial precedent. Non-judicial precedent is an important phenomenon not usually counted among the conventional sources of constitutional meaning. The term, non-judicial precedent, encompasses the constitutional activities of non-judicial actors. Non-judicial precedent has several distinctive features, which the article describes and illustrates through various examples. First, it is far more extensive than its judicial counter-part and more enduring than many scholars suppose. Second, the binding effects of non-judicial precedent vary according to several factors, including their timing and their direction – operating vertically as orders imposed by superior upon …

Post-Katrina New Orleans: The Strangely Vacant Article Ii Actor Denying Or Delaying Right Or Justice, Cynthia A. Drew

ExpressO

Because this work is not literature but at its most essential is a mirror of the conundrum presented by the rapidly approaching moment of Constitutional politics in our present American national life, that mirror perforce shows but a pastiche, a mosaic not yet complete, a jigsaw puzzle whose pieces keep shifting in space before they can be placed. As yet no “final answer” has appeared on any horizon to the dilemmas posed by the consequences of the Presidential actions analyzed in the Leitmotif -- particularly the decidedly non-heroic failures to act that had such lethal consequences for so many of …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

ExpressO

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Suspicionless Canine Sniffs: Does The Fourth Amendment Prohibit Public Schools From Using Dogs To Search Students Without Individualized Suspicion?, Todd J. Feinberg

ExpressO

Drugs plague our nation’s schools. Since traditional methods of fighting the problem are proving ineffective, some schools are trying new approaches. One such approach is using specially trained dogs to indiscriminately sniff students for the presence of illegal drugs. Using dogs to sniff students is controversial and has sparked a constitutional debate. The Supreme Court has not expressly ruled on whether suspicionless canine sniffs violate a public school student’s Fourth Amendment protection against unreasonable searches. In fact, the Court has acted in a manner that actually increases uncertainty around the issue. This uncertainty makes employing suspicionless canine sniffs difficult for …

The Deregulatory Valence Of Justice O'Connor's Federalism, Bradley W. Joondeph

ExpressO

When Justice O’Connor announced her retirement in July 2005, reflections on her career teemed with references to her role as a leader of the Rehnquist Court’s “federalism revival.” But the common perception of O’Connor as an ardent defender of the states’ independent policymaking authority is grounded in a narrow understanding of constitutional federalism—one that focuses primarily, if not exclusively, on the limits of the national government’s power. Constitutional federalism also involves a variety of structural constraints on state power, constraints that are designed to protect the interests of the nation as a whole. And in cases implicating these “union-preserving” provisions …

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

The Roberts Court: Year 1, Lori A. Ringhand

Scholarly Works

This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated goals, was …

Tom Delay: Popular Constitutionalist?, Neal Devins

Faculty Publications

No abstract provided.

Dead Man Waiting: Death Row Delays, The Eighth Amendment, And What Courts And Legislatures Can Do, Kate F. Mcmahon

ExpressO

Is there a point at which a person’s tenure on death row has lasted so long or has become so stressful that his sentence begins to violate the Constitution? This argument, dubbed the Lackey claim, has surfaced before in both the international and domestic arenas. Whereas over the last five years the Eighth Amendment has substantially chipped away at the constitutionally permissible parameters of capital punishment in the United States, the current legal landscape surrounding the death penalty may be poised for more upheaval.

My article, entitled “Dead Man Waiting: Death Row Delays, the Eighth Amendment, and What Courts and …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Access To Audiences As A First Amendment Right: Its Relevance And Implications For Electronic Media Policy, Philip M. Napoli, Sheea T. Sybblis

ExpressO

When the issue of speakers’ rights of access arises in media regulation and policy contexts, the focus typically is on the concept of speakers’ rights of access “to the media,” or “to the press.” This right usually is premised on the audience’s need for access to diverse sources and content. In contrast, in many non-mediated contexts, the concept of speakers’ rights of access frequently is defined in terms of the speaker’s own First Amendment right of access to audiences. This paper explores the important distinctions between these differing interpretations of a speaker’s access rights and argues that the concept of …

Statutes Of Repose And The Equal Protection Clause Of The 14th Amendment Of The U.S. Constitution, Garris G. Ference

ExpressO

No abstract provided.

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

ExpressO

The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the …

Squaring The Circle: Democratizing Judicial Review And The Counter-Constitutional Difficulty, Miguel Schor

ExpressO

The Article argues that the polarization in the appointments process for the United States Supreme Court creates a problem that I call the counter-constitutional difficulty. A constitution is designed to put certain decisions off limits to the workings of ordinary politics. Laws can be made and changed by majoritarian mechanisms whereas a constitution can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. The easiest way to amend the Constitution is by changing the membership of the Supreme Court given the rigors of Article V. A number of decisions by the Court …

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer

Articles

No abstract provided.

Who Will Redevelop Redevelopment?, Tim Kowal

ExpressO

Although California’s redevelopment law is among the strictest in the nation, from a layperson’s perspective, redevelopment agencies (RDAs) appear to be no more obstructed from their projects in California as they would be in, say, Connecticut. This article addresses a sort of “tragedy of the commons” problem applied to redevelopment: If redevelopment powers are “over-harvested” such as to instigate serious political revolt against them, they will become barren and useless, and will no longer be available for the purposes for which they were intended and for which they are still needed. Even assuming that redevelopment is efficacious and necessary, redevelopment …