Constitutional Law Commons^™

Excessively Unconstitutional: Civil Asset Forfeiture And The Excessive Fines Clause In Virginia, Rachel Jones

William & Mary Bill of Rights Journal

No abstract provided.

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

William & Mary Bill of Rights Journal

This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many …

Damned Lies & Criminal Sentencing Using Evidence-Based Tools, John Lightbourne

Duke Law & Technology Review

The boom of big data and predictive analytics has revolutionized business. eHarmony matches customers based on shared likes and expectations for romance, and Target uses similar methods to strategically push its products on shoppers. Courts and Departments of Corrections have also sought to employ similar tools. However, the use of data analytics in sentencing raises a host of constitutional concerns. In State v. Loomis, the Wisconsin Supreme Court was faced with whether the use of an actuarial risk assessment tool based on a proprietary formula violates a defendant’s right to due process where the defendant could not review how the …

May 9, 2017: What Can Democracy Do?, Bruce Ledewitz

Hallowed Secularism

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

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

Proportionality Skepticism In A Red State, Lauren Sudeall Lucas

Faculty Publications By Year

Commentary on Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (2016).

Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: David A. Logan's Blog: Donald Trump Vs. Roger Williams 05-08-2017, David A. Logan

Law School Blogs

No abstract provided.

Can President Trump 'Open Up' The Libel Laws?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Libel and slander are branches of the law of defamation. Defamation law authorizes remedies for reputational harm caused by some false statements of fact. A libel is a defamatory statement that is printed or written; a slander is a defamatory statement that is spoken.

During the 2016 presidential campaign, candidate Donald Trump suggested that, if elected, he would "open up our libel laws" to facilitate lawsuits by public officials against news organizations."

Stewart V. State, 133 Nev. Adv. Op. 20 (May 4, 2017), Margarita Elias

Nevada Supreme Court Summaries

Before his interrogation, Tommy Laquade Stewart (“Stewart”) was given LVMPD’s Miranda warning pursuant to Miranda v. Arizona.[1] Stewart then agreed to speak with detectives without an attorney. He was subsequently charged and convicted of kidnapping and robbery. On appeal, Stewart argued that there was insufficient evidence to support the convictions and that the Miranda warning was legally insufficient. The Court disagreed and affirmed the district court’s judgment of conviction.

[1] 384 U.S. 436 (1966).

May 3, 2017: What Threat From Ai, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Threat from AI“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Hichilema And Another V Lungu And Another (2016/Cc/0031) [2016] Zmcc 4 (5 September 2016), Minority Judgement, Dunia P. Zongwe

SAIPAR Case Review

On September 5th 2016, there was tension in the packed Constitutional Court. Three out of five Constitutional Court judges (i.e., Anne Mwewa-Sitali, Mugeni Mulenga and Palan Mulonda) dismissed the election petition of Presidential candidate Hakainde Hichilema and his running mate Geoffrey Mwamba, on the grounds that the time for hearing the petition had lapsed. The President of the Court Justice Hildah Chibomba, and Justice Margaret Munalula dissented.

Dividing the Court was the interpretation and effect of Articles 101(5) and 103(2) of the Constitution of Zambia. Articles 101 (5) and 103 (2) provide that the Constitutional Court must hear a Presidential …

Political Insider Trading, Michael R. Siebecker

Fordham Law Review

A fiduciary breach due to secret use of Business Organizations assets for personal gain marks the essential concern in both the insider trading realm and in the context of Business Organizations political spending. Therefore, adopting a similar common law fiduciary rule that Business Organizations managers must disclose the amount and target of political expenditures or refrain from engaging in political activity does not seem like much of an intellectual leap. Not only would such a common law disclosure duty fit neatly within existing Business Organizations governance principles, but the compelled transparency would not offend corporations’ First Amendment rights. In the …

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

The Unconstitutional Application Of Apprehension And Detention Laws: Section 236(C) Of The Immigration And Nationality Act, Rigoberto Ledesma

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley

Journal Articles

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his …

Interpreting The Constitution’S Elegant Specificities, Steven Semeraro

Buffalo Law Review

No abstract provided.

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

No abstract provided.

Katuka And Law Association Of Zambia Vs Inonge Wina And Others (2016/Cc/0010/2016/Cc/0011) [2016] Zmcc 1, Tinenenji Banda

SAIPAR Case Review

The discrete legal issue to be decided by the Court was whether the continued stay in office by the Vice President, Cabinet Ministers, Provisional Ministers and Deputy Ministers – after the dissolution of Parliament on 11th May, 2016, and after the enactment of the Constitution of Zambia Amendment Act No. 2 of 2016, was ultra vires the constitution and therefore unconstitutional. If unconstitutional, a follow up issue was whether the salaries, allowances, and emoluments drawn by the above officials during their unlawful stay in office should be repaid. The case was filed as three separate causes, but by consent of …

Hichilema And Another V Lungu And Another (2016/Cc/0031) [2016] Zmcc 4 (5 September 2016), Majority Judgment, Muna Ndulo

SAIPAR Case Review

No abstract provided.

Katuka V Electoral Commission Of Zambia (2016/Cc/0025) [2016] Zmcc 2 (9 August 2016), Chanda Chungu

SAIPAR Case Review

No abstract provided.

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii

University of Richmond Law Review

No abstract provided.

Anchors Aweigh: Analyzing Birthright Citizenship As Declared (Not Established) By The Fourteenth Amendment, Elizabeth Farrington

University of Richmond Law Review

No abstract provided.

Drawing Lines Of Sovereignty: State Habeas Doctrine And The Substance Of States' Rights In Confederate Conscription Cases, Withrop Rutherford

University of Richmond Law Review

No abstract provided.

The Prophylactic Fifth Amendment, Tracey Maclin

Faculty Scholarship

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Did Justice Scalia Have A Theory Of Interpretation?, Gary S. Lawson

Faculty Scholarship

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with …

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Vanderbilt Law Review

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr.

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …

The Commercial Difference, Felix T. Wu

William & Mary Law Review

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to …

Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park

Utah Law Faculty Scholarship

This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate …