Originalism-By-Analogy And Second Amendment Adjudication,
2023
Duke Law School
Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben
Faculty Scholarship
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …
Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military,
2023
Duke Law School
Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.
Faculty Scholarship
In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …
Guided By History: Protecting The Public Sphere From Weapons Threats Under Bruen,
2023
Duke Law School
Guided By History: Protecting The Public Sphere From Weapons Threats Under Bruen, Joseph Blocher, Reva B. Siegel
Faculty Scholarship
Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide …
The Income Tax, The Constitution, And The Unrealized Importance Of Helvering V. Griffiths,
2023
Duke Law
The Income Tax, The Constitution, And The Unrealized Importance Of Helvering V. Griffiths, Lawrence Zelenak
Faculty Scholarship
The Supreme Court recently granted certiorari in Moore v. United States, for the purpose of deciding whether the realization doctrine remains a constitutional limitation on Congress's ability to impose an unapportioned income tax, as the Court held in its famous 1920 decision in Eisner v. Macomber. Although it is natural to look to 1920 and Macomber as the cause of today's uncertain scope of the congressional power to tax income, what did not happen in the Court's 1943 decision in Helvering v. Griffiths is as significant as what did happen in 1920. the presence of Moore on the Court's docket …
Common Good Gun Rights,
2023
Duke Law School
Common Good Gun Rights, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Autonomy And Disciplinarity: Can Pseudoprofessional Speakers Select Their Own Constitutional Categorization?,
2023
Duke Law School
Autonomy And Disciplinarity: Can Pseudoprofessional Speakers Select Their Own Constitutional Categorization?, Joseph Blocher
Faculty Scholarship
No abstract provided.
Intentional Discrimination And Haredi Jews,
2023
Touro Law Center
Intentional Discrimination And Haredi Jews, Michael Lewyn
Scholarly Works
A discussion of case law involving discrimination suits by Haredi Jews, especially in the land use context.
Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law,
2023
Touro Law Center
Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron
Scholarly Works
Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …
“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom,
2023
Touro Law Center
“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham
Scholarly Works
Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …
The Future Of Ivf Post Dobbs,
2023
Touro University Jacob D. Fuchsberg Law Center
Second Amendment Sanctuaries: Defiance, Discretion, And Race,
2023
Fordham University School of Law
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Faculty Scholarship
Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …
Policing "Bad" Mothers,
2023
Fordham University School of Law
Policing "Bad" Mothers, I. Bennett Capers
Faculty Scholarship
Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …
Originalism, Common Good Constitutionalism, And Transparency,
2023
St. Mary’s University School of Law
Originalism, Common Good Constitutionalism, And Transparency, Michael L. Smith
Faculty Articles
A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about what the Constitution means. Common good constitutionalism's reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation which tends to match the desires of the interpreter. At the …
A Vague, Overconfident, And Malleable Approach To Constitutional Law,
2023
St. Mary’s University School of Law
A Vague, Overconfident, And Malleable Approach To Constitutional Law, Michael L. Smith
Faculty Articles
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. The Court did so by applying a “historical tradition” approach to determine the scope of Second Amendment protection. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.” At first glance, the historical tradition approach may seem objective and easier than an empirical analysis …
The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions,
2023
University of Michigan Law School
The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson
Articles
The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …
The Appropriate Appropriations Inquiry,
2023
The Catholic University of America, Columbus School of Law
The Appropriate Appropriations Inquiry, Chad Squitieri
Scholarly Articles
The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, …
Catalyzing Judicial Federalism,
2023
University of Colorado Law School
Foreword: Looking Back To Move Forward: Exploring The Legacy Of U.S. Slavery,
2023
University of Colorado Law School
Foreword: Looking Back To Move Forward: Exploring The Legacy Of U.S. Slavery, Suzette Malveaux
University of Colorado Law Review
No abstract provided.
Foreword: Expanding The Boundaries Of Knowledge About Slavery And Its Legacy,
2023
University of Colorado Law School
Foreword: Expanding The Boundaries Of Knowledge About Slavery And Its Legacy, Lolita Buckner Inniss
University of Colorado Law Review
No abstract provided.
Social Construction Of Race Undergirds Racism By Providing Undue Advantages To White People, Disadvantaging Black People And Other People Of Color, And Violating The Human Rights Of All People Of Color,
2023
University of Colorado Law School
Social Construction Of Race Undergirds Racism By Providing Undue Advantages To White People, Disadvantaging Black People And Other People Of Color, And Violating The Human Rights Of All People Of Color, Adjoa A. Aiyetoro
University of Colorado Law Review
No abstract provided.
