Constitutional Law Commons^™

Issue 3: Table Of Contents

University of Richmond Law Review

No abstract provided.

Acknowledgments, Andrew E. Hemby

University of Richmond Law Review

No abstract provided.

A Non-Originalist Separation Of Powers, Eric J. Segall

University of Richmond Law Review

No abstract provided.

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

University of Richmond Law Review

No abstract provided.

States Suing The Federal Government: Protecting Liberty Or Playing Politics?, Elbert Lin

University of Richmond Law Review

No abstract provided.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

The Law (?) Of The Lincoln Assassination, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Shortly after John Wilkes Booth killed Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that was a subject of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected presiding judge, by trying individuals other than members of the armed forces in a military …

Zombie Religious Institutions, Elizabeth Sepper

Northwestern University Law Review

This Article uncovers and names a phenomenon of pressing importance for healthcare policy and religious liberty law: the rise of zombie religious institutions—organizations that have contractual commitments to religious identity but lack actual attachments to churches or associations of religious people. Contracts create religion—sometimes in perpetuity—for institutions that are not, or never have been, religious and for providers who do not share the institution’s religious precepts. This Article details religion’s spread across healthcare through affiliations, mergers, and—most surprisingly—sales of hospitals that continue religious practice after their connection to a church ends. These contracts require hospitals—secular and religious, public and private, …

Accountability Claims In Constitutional Law, Nicholas O. Stephanopoulos

Northwestern University Law Review

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.

There is just one problem with these claims. They are wrong—at least for the …

Critical Dialogue, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Getting To The Root Of The Problem: Written Representations To The Select Committee On Deliberate Online Falsehoods, Yi Siong Sui, Aaron Yoong, Hao Ren Lyndon Choo, Lixin Chen

Research Collection Yong Pung How School Of Law

The phenomenon of the spread of deliberate falsehoods has been exacerbated in the current day and age with the usage of technology. An examination of this issue shows that that the motivations and reasons for spreading such falsehoods have not changed. Instead, the primary mischief lies in the near instantaneous dissemination and ease of access via internet intermediaries.Despite this, there is a gap in the regulatory tools available to deal with this mischief. The solution hence should lie in imposing some sort of liability on internet intermediaries to remove deliberate falsehoods. Nevertheless, it is crucial that such intermediary liability must …

Response To Bruce Frohnen’S Review Of Fidelity To Our Imperfect Constitution: For Moral Readings And Against Originalisms, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Interpreting An Unamendable Text, Thomas W. Merrill

Vanderbilt Law Review

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …

Las Vegas Review-Journal V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 7 (Feb. 27, 2018), Matthew J. Mckissick

Nevada Supreme Court Summaries

The Court determined that the First Amendment does not allow a court to prevent the press from reporting on a redacted autopsy report already released to the public.

Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

State Constitutions And The Protection Of Rights, John M. Greabe

Law Faculty Scholarship

This article, using a recent Pennsylvania Supreme Court ruling on partisan gerrymandering, explores how state constitutions can be significantly more protective of rights than the federal constitution.

February 24, 2018: When I Left The Darwin Day Committee, Bruce Ledewitz

Hallowed Secularism

Blog post, “When I Left the Darwin Day Committee“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Serving Pets In Poverty: A New Frontier For The Animal Welfare Movement, Amanda Arrington, Michael Markarian

Sustainable Development Law & Policy

No abstract provided.

How Fast Is Too Fast? Osha’S Regulation Of The Meat Industry’S Line Speed And The Price Paid By Humans And Animals, Israel Cook

Sustainable Development Law & Policy

No abstract provided.

The Farts Heard ‘Round The World: Where Cow-Tapping Falls On The International Agenda Of Sustainable Development, Alexandra C. Nolan

Sustainable Development Law & Policy

No abstract provided.

This Is Not The Bee’S Knees: A Critical View Of The Government’S Lack Of Policy To Conserve The Pollinators, Savannah Pugh

Sustainable Development Law & Policy

No abstract provided.

Legislative Efforts To Increase State Management For Imperiled Species Should Be Rejected, Stephanie Kurose

Sustainable Development Law & Policy

No abstract provided.

Anthropogenic Noise And The Endangered Species Act, Carolyn Larcom

Sustainable Development Law & Policy

No abstract provided.

Cruelty To Human And Nonhuman Animals In The Wild-Caught Fishing Industry, Kathy Hessler, Rebecca Jenkins, Kelly Levenda

Sustainable Development Law & Policy

No abstract provided.

The “Fowl” Practice Of Humane Labeling: Proposed Amendments To Federal Standards Governing Chicken Welfare And Poultry Labeling Practices, Latravia Smith

Sustainable Development Law & Policy

Chickens raised specifically for meat production are the world’s most intensively farmed land animals. Yet, the existing legal frameworks that regulate the production and labeling of poultry products in the United States allow poultry producers to mistreat chickens, falsely distinguish poultry products, and defraud conscious consumers. This article proposes unique opportunities to improve poultry welfare in the United States’ agricultural industry and offers methods to ensure the accurate labeling of poultry products.

Cafos: Plaguing North Carolina Communities Of Color, Christine Ball-Blakely

Sustainable Development Law & Policy

No abstract provided.

About Sdlp

Sustainable Development Law & Policy

No abstract provided.

Editor's Note, Luke Trompeter, Ingrid Lesemann

Sustainable Development Law & Policy

No abstract provided.

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren Lenard Hutchinson

Florida Law Review

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed

Georgia State University Law Review

Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence standard, …