Common Law Commons^™

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

A Return To Roots: Guy V. Housing Authority Of Augusta And The Revival Of Common Law Sovereign Immunity, Macyn L. Nasser

Mercer Law Review

In late 2021, a shooting at a housing complex reignited a centuries-old question: when may a municipality claim the sovereign’s shield? In Guy v. Housing Authority of the City of Augusta (“Guy II”), the Supreme Court of Georgia vacated a court of appeals decision that had analogized a housing authority to a state agency and thus found it immune from suit. In its decision, the supreme court explained that such questions must be resolved by examining whether the entity would have been immune under English common law as it existed in 1776. The case was remanded for the lower court …

Rekonstruksi Mekanisme Seleksi Hakim Konstitusi Di Indonesia, Indah Sri Pangestu, Dwi Yuliani, Hertaty Dorothy Dewi Siburian

Jurnal Konstitusi & Demokrasi

The mechanism for selection and election of constitutional judges in Indonesia currently still shows a diversity of procedures in each proposing institution, namely the Supreme Court, DPR and President. The process implemented does not fully reflect the principles of transparency, participation, objectivity and accountability as mandated in the Law on the Constitutional Court. Therefore, it is necessary to standardize the procedures for selection and selection of constitutional judges to ensure a more professional system and integrity. One of the solutions offered is the establishment of an independent institution responsible for the selection and recruitment of constitutional judges with a system …

Liening On The Court: Examining Loblolly Properties, Llc V. Le Papillon Homeowner's Association, Inc. And The Future Of Lien Priority In Mississippi, Thomas C. Jones

MC Law Review

The Mississippi Supreme Court in Loblolly Properties, LLC v. Le Papillon Homeowner’s Association, Inc. held that the nonjudicial foreclosure of a deed of trust does not extinguish restrictive covenants to pay HOA fees that were filed after the recording of the deed of trust.  In doing so, the Court blatantly disregarded the fundamental understanding of lien priority in Mississippi, and also failed to explain how the policy behind lien priority would further be upheld in the future. This decision by the Supreme Court is incorrect and places Mississippi in a “super-minority” of jurisdictions on this issue.  The overwhelming majority of …

Foreword: Casebooks And The Choices That Shape Constitutional Law, Sanford Levinson, Caroline Olsen

William & Mary Bill of Rights Journal

This collection of essays is the product of a conversation between the two co-authors of this Introduction. It occurred toward the conclusion of a very illuminating Symposium at William & Mary Law School in March 2024 on Jack Balkin’s latest book, Memory and Authority, on the role that memory plays in our notions of law. Caroline was the incoming Editor-in-Chief of the William & Mary Bill of Rights Journal, which had sponsored the Symposium. Sandy was a participant in the Symposium. Jack is a very close friend with whom he has coauthored at least two dozen articles and …

Casebooks, Canons, And Constitutional Memory, Jack M. Balkin, Sanford Levinson

William & Mary Bill of Rights Journal

Casebooks on constitutional law take a lot of time and effort to prepare. What is the point of bothering to edit one? There are several possible reasons. First, you might want to make money from sales. For the vast majority of law professors, the financial return to the hours spent organizing and editing cases is simply not worth it. Second, you might be the sort of person who just likes to do things by yourself. If you are going through the bother of preparing your own materials, then why not publish them and possibly influence others as well? Most law …

What Is The Measure Of Success For A Constitutional Law Casebook?, Erwin Chemerinsky

William & Mary Bill of Rights Journal

In this Essay, I want to address four topics: how I came to write my constitutional law casebook; my goals for my Constitutional Law class and how the book facilitates achieving them; the challenges in writing a constitutional law casebook; and thoughts about the future of constitutional law casebooks.

There are many different constitutional law casebooks on the market because there are countless different ways of teaching the subject. There is no right way or best way to teach this or any other subject in the law school curriculum. I am describing my approach to teaching a subject that is …

Overruled Cases As A Tool For Inculcating Legal Realism, Michael C. Dorf

William & Mary Bill of Rights Journal

The changes wrought by Dobbs and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) are hardly the only examples of momentous changes to constitutional law in the last few years. Doctrines involving the religion clauses of the First Amendment, the Second Amendment, the scope of the president’s removal power, and much more have been changing rapidly since Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020, thereby solidifying a conservative supermajority on the Supreme Court. I imagine that the strengthening of the major questions doctrine, the overruling of Chevron deference to federal administrative …

Show And Tell: Writing Constitutional Law Casebooks When The Law Doesn't Matter, William D. Araiza

William & Mary Bill of Rights Journal

Writing a constitutional law casebook today presents significant challenges. One reason among several stands out: law matters less—indeed, sometimes very little—to those charged with interpreting our constitutional law and implementing our constitutional system.

This Essay examines this challenge and explains how my contribution to the constitutional casebook genre attempts to answer it. It argues that the current moment requires instructors, and the books they use, to “show”—that is, to demonstrate to their students both the handiwork of those interpreters and implementers and alternative pathways. Sometimes, however, practical considerations preclude such showing. In those situations, “telling” may be required. But regardless …

Coping With A Court One Disagrees With, Randy E. Barnett, Josh Blackman

William & Mary Bill of Rights Journal

Part I of this Essay focuses on our approach to teaching the constitutional canon. This part is adapted from the Preface to our constitutional law casebook. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and the forthcoming Fifth Edition. We demonstrate that the constitutional canon has changed, but remains remarkably stable. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with.

This abstract has been taken from the authors' introduction. 

What Should A Constitutional Law Casebook Be?, William Funk

William & Mary Bill of Rights Journal

What is the purpose of a “casebook”? It is not a “hornbook,” designed to summarize or explain the law in a specific area, generally aimed at law students or lawyers to provide a straightforward statement of the law. It is not a “treatise,” a comprehensive, systematic exposition of the law in a particular field, involving an in-depth analysis and interpretation of the law. And it is not a “study aid,” supplementary material designed to help students do better in their classes. It is the book used by professors in their classes. For professors of constitutional law, it is a tool …

Codification In Mississippi: Nineteenth Century Efforts For A Mississippi Civil Code, Milton J. Hernandez Iv

MC Law Review

No abstract provided.

Divine Detachment: Beachy V. Assemblies Of God And A New Interpretation Of The Ecclesiastical Abstention Doctrine, Juarez Mcleod Johnson

MC Law Review

In the landmark case of Beachy v. Mississippi District Council for Assemblies of God, the Mississippi Supreme Court redefined its interpretation of the ecclesiastical abstention doctrine—marking a pivotal shift in church-state jurisprudence. Traditionally, this doctrine instructed courts to defer to the highest internal authority of a church when deciding disputes within hierarchical religious organizations. However, the court’s decision in Beachy significantly departed from this principle by designating the local pastor and congregation as the supreme authority over local church affairs, even within a hierarchical structure.

This Casenote explores the profound implications of the Supreme Court’s ruling, focusing on its …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

A True Fact Should Not Be Controversial: Analyzing The Zauderer Standard And Defining “Uncontroversial”, Edina Hartstein

Fordham Law Review

In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court recognized an exception to the compelled speech doctrine that allowed the government to regulate commercial speech if it was “purely factual and uncontroversial.” However, the Court failed to define what it meant for a disclosure to be “purely factual” or what it meant to be “uncontroversial.” This lack of clarity led to lower courts inconsistently applying the Zauderer standard. In 2018, the Supreme Court decided National Institute for Family Life & Advocates v. Becerra (NIFLA), which held that the Zauderer standard cannot apply when the disclosure …

What Makes A Con Law "Doctrine" And Why Does It Matter?, Allison Orr Larsen

William & Mary Bill of Rights Journal

A few years ago, I started wondering about the “major questions doctrine” (or MQD) in administrative law, and I found myself asking: “When did that become a thing?” I was familiar with the cases that stand for the proposition that Congress does not lightly delegate high stakes questions to administrative agencies—cases that date back to 2000 and specifically to a decision about cigarette advertising and the FDA. But up until 2022, it was rare for courts and commentators to refer to that collection of cases as a “doctrine.” Today, by contrast, the major questions doctrine is bread and butter administrative …

The Value Of Jury Rights, Philip A. Hamburger

Faculty Scholarship

The right to a civil jury trial is often dismissed as an inefficient anachronism ill suited to the complexities of modern litigation, and these efficiency concerns have long overshadowed any serious defense of the Seventh Amendment. This Article argues that such skepticism profoundly misunderstands the constitutional function and enduring value of civil jury rights. The Article observes that the Seventh Amendment’s jury right was adopted with the understanding that it would come with some inefficiencies and that contemporary concerns about its inefficiencies tend to be overstated. Ultimately, the Article finds that civil juries are essential for structural reasons such as …

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

The First Amendment, Discrimination, And Public Accommodations At Common Law, Adam J. Macleod

Kentucky Law Journal

No abstract provided.

Investigating The Relationship Between Noun Classes And Plant Folk Taxonomy In Chasu Language Of Kilimanjaro Region In Tanzania, Peter Rabson Mziray

Journal of Humanities and Social Sciences

The current study investigates the relationship between noun classes and plant folk taxonomy in Chasu (G 22). The study focuses on two objectives: the first objective is to describe the plant folk taxonomy in Chasu and the second objective is to determine the relationship between noun classes and plant folk taxonomy in Chasu. Data were collected from rural villages in Same and Mwanga districts by using free listing, field interviews (jungle-walk-and-identify), and written texts containing Chasu plant names. The findings reveal that Chasu folk taxonomy reflects different ethnobotanical categories; including a unique beginner which is mmea/mimea ‘plant(s)’, and three life …