Constitutional Law Commons^™

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself …

It's Not The Thought That Counts, Deborah S. Hellman

ExpressO

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott

The Ohio State University Moritz College of Law Working Paper Series

We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …

Reviving A Natural Right: The Freedom Of Autonomy Amendment, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

Reviving A Natural Right: The Freedom Of Autonomy Amendment, Michael Anthony Lawrence

ExpressO

Reviving a Natural Right: The Freedom of Autonomy Amendment

Michael Anthony Lawrence

Something is wrong in twenty-first century America when it comes to recognizing certain “self-evident truths” of freedom identified in its founding document nearly 23 decades ago. In particular, the United States today fails to uphold the core principle of the Declaration of Independence that “all men are created equal: that they are endowed by their Creator with certain inalienable rights: that among these are life, liberty and the pursuit of happiness.” This description was more than just an accidental well-turned phrase – as demonstrated by the historical record, …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

ExpressO

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign’s power, enable the sovereign to make such commitments. This essay advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems – undercommitment and overcommitment – between which they must steer: an actor that can bind itself …

“Oh Lord, Please Don't Let Me Be Misunderstood!”: Rediscovering The Penn Central And Mathews V. Eldridge Frameworks, Gary Lawson, Katharine A. Ferguson, Guillermo Montero

ExpressO

The manuscript re-examines the origins and purposes of two of the most misunderstood constructs in modern legal doctrine: the so-called Penn-Central and Mathews v. Eldridge three-factor tests. We say “so-called,” because neither case actually invented a three-factor test. Penn Central set forth a framework involving two factors that later cases (unwisely, in our view) expanded to three, and the framework in Mathews was initially crafted by litigators in the Solicitor General’s office in order to resolve the specific issue facing the Court in that case. More significantly, neither Penn Central nor Mathews purported to set forth a methodology for deciding …

Does The Establishment Clause Require Religion To Be Confined To The Private Sphere?, Kevin Pybas

ExpressO

Through the first four decades or so of the U.S. Supreme Court’s church-state jurisprudence the Court generally sought to confine religion to the private sphere, on the grounds that the establishment clause requires such a result. While the Rehnquist Court has been more open to religion in the public sphere than previous Courts, the claim that the establishment clause requires religion to be restricted to the private sphere retains strong support among a minority of Supreme Court justices. Witness Justice Souter’s fierce objection, in Zelman v. Simmons-Harris (2002), to the Court’s approval of the use of publicly funded tuition vouchers …

Fig Leaf Federalism And Tenth Amendment Exceptionalism, Nelson Lund

George Mason University School of Law Working Papers Series

The Supreme Court’s jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O’Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O’Connor and Scalia suggestions could work a real transformation in …

Constitutionalism Through The Looking Glass Of Latin America, Miguel Schor

ExpressO

This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article …

Courtside, Paul M. Smith, Katherine A. Fallow, Daniel Mach, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Publications

No abstract provided.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

ExpressO

This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …

The Hydraulics And Politics Of Party Regulation, Michael S. Kang

ExpressO

No abstract provided.

New Light On The Decision Of 1789, Sai Prakash

ExpressO

In the Constitution’s earliest days, members of the House engaged in one of the nation’s most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a …

A Right To No Meaningful Review: The Aftermath Of Shalala V. Illinois Council On Long Term Care, Inc., Ruqaiijah Ayanna Yearby

ExpressO

A RIGHT TO NO MEANINGFUL REVIEW: THE AFTERMATH OF SHALALA v. ILLINOIS COUNCIL ON LONG TERM CARE, INC. Ruqaiijah A. Yearby

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. Federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, …

The Disability Integration Presumption: Thirty Years Later, Ruth Colker

The Ohio State University Moritz College of Law Working Paper Series

The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of “integration.” This article brings that debate to a new context – the integration presumption under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has contained an “integration presumption” for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In …

Is Tiger Woods’S Swing Really A Work Of Art? Defining The Line Between The Right Of Publicity And The First Amendment, Michael R. Suppappola

ExpressO

My Comment, “Is Tiger Woods’s Swing Really a Work of Art? Defining the Line Between the Right of Publicity and the First Amendment,” focuses on the controversial “right of publicity,” a legal doctrine which is now recognized in the majority of states either at common law or by statute. The right of publicity allows athletes and celebrities to exclude others from using an entertainer’s likeness or image absent express permission. Although advocates claim that the right is needed to allow celebrities to profit from their own labor and goodwill, my Comment outlines how the right of publicity endangers traditional First …

The Dual Model Of Balancing: A Model For The Proper Scope Of Balancing In Constitutional Law, Iddo Porat

ExpressO

One of the most pressing problems of current constitutional law in the aftermath of September 11 is how to balance constitutional rights and national security interests. No one however seems to pause and ask should we balance individual rights and national security interests and if so when. One of the reasons for this is the widespread acceptance of what I shall term in this Article, the balancing consciousness: the view that every problem can and should be solved through balancing conflicting considerations. This Article demonstrates that the balancing consciousness is misleading. Not every problem can and should be solved through …

The Irrational Supreme Court, Michael I. Meyerson

ExpressO

Abstract: The Irrational Supreme Court

The pejorative “irrational” is used to describe many defects in legal reasoning, but is generally not meant to be understood as a literal lack of rational thinking. Similarly, the “rational basis test” is not meant to determine whether a legislature is “not endowed with reason or understanding,” but rather if it has acted with some hidden, invidious motive. Incredibly, though, the Supreme Court has frequently issued truly “irrational opinions,” simply due to the fundamental nature of group decision-making.

Much has been written about Nobel Prize winner Kenneth Arrow’s “Impossibility Theorem,” which proved that, when faced …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

In Or Out? Groups And The Fourteenth Amendment After Lawrence V. Texas, Miranda Mcgowan

ExpressO

This article explores a line of Supreme Court cases that have struck down state laws using a rigorous form of rational basis scrutiny, culminating in Lawrence v. Texas. The facts of these rigorous rational basis cases are diverse, but they share a common denominator: the Court has applied more rigorous rational basis scrutiny when a government has restricted the liberties of, or denied some state benefit, to a group—specifically, gays, lesbians, persons with disabilities, illegal immigrant children, and hippies.

Rigorous rational basis scrutiny has not wholly supplanted regular rational basis scrutiny. Courts still use regular rational basis scrutiny to review …

The Opacity Of Transparency, Mark Fenster

ExpressO

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Federal-State Negotiations Over Federal Enclaves In The Early Republic, Adam S. Grace

ExpressO

This article examines practical solutions arrived at by the federal and state governments in resolving early interpretive issues that arose under Article I's "Enclave Clause." Focusing on the federal government's creation of federal "enclaves" for use in a national lighthouse system, the article compares these politically-based solutions with the later development of Supreme Court "Enclave Clause" jurisprudence.