Constitutional Law Commons^™

Impeachment As A ‘Madisonian Device’ Reconsidered, Amanda Hollis-Brusky

Chicago-Kent Law Review

No abstract provided.

The Senate, The Trump Impeachment Trial And Constitutional Morality, Joel K. Goldstein

Chicago-Kent Law Review

No abstract provided.

Like “Nobody Has Ever Seen Before”: Precedent And Privilege In The Trump Era, Heidi Kitrosser

Chicago-Kent Law Review

No abstract provided.

The Misguided On-Off Theory Of Congressional Authority, Steven D. Schwinn

Chicago-Kent Law Review

No abstract provided.

The Constitution, The Common Good, And The Ambition Of Adrian Vermeule, Sotirios Barber, Stephen Macedo, James E. Fleming

Faculty Scholarship

Public trust in the U.S. government has declined steadily over the last sixty years, from 73% in 1958 to 17% in 2018 (Pew 12/9/20). Public support for the U.S. Constitution has remained higher. When support for the government dipped to an all-time low of 15% in 2010, support for the Constitution stood at 74%. But the gap has narrowed. From 2010 to 2017 support for the Constitution fell from 74% to around 50%—a drop of 24 points in seven years (AP/NCC 8/12; Rasmussen 2017). These figures suggest that if Americans continue to believe that their government isn’t working, they’ll eventually …

Ford Motor Company V. Montana Eighth Judicial District Court: Redefining The Nexus Requirement For Specific Jurisdiction, Brittany Day

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey

Law & Economics Working Papers

What does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (US Const. Article I, Section 8, Clause 1)? The definition of “tax” for constitutional purposes has become important in light of the Supreme Court’s 2012 decision in NFIB v. Sebelius, in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Affordable Care Act under the taxing power. This has led to commentators questioning …

The Constitutional Status Of The Administrative State, Kate Glover Berger

All Papers

This paper considers the constitutional status of the administrative state. It argues that, after decades of growth in size, reach, and power, the administrative state can now be understood as an architectural feature of the Canadian constitution. To make this argument, the paper first provides an account of the concept of architecture in Canadian constitutional law and the analytical framework it offers for thinking through the status question. It then looks to developments in Canadian public law that shed light on the status of the administrative state. The analysis focuses on three such developments: the expansion of the role of …

Defending "Universal Vacatur" - Nationwide Injunctions For Administrative Law, Michael E. Herz

Online Publications

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that …

January 11, 2021: Pa. Senate Republicans Need To Seat Dem. Jim Brewster--This Week's Column In The Pennsylvania Capital-Star, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pa. Senate Republicans Need to Seat Dem. Jim Brewster--this week's column in the Pennsylvania Capital-Star“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Pa. Senate Republicans Need To Seat Sen. Jim Brewster, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Future Of Materialist Constitutionalism, Robert L. Tsai

Faculty Scholarship

This is a review essay of Camila Vergara, Systemic Corruption (Princeton 2020). In this lively and important book, Vergara argues that corruption should be given a structural definition, one that connects corruption with inequality and is plebeian rather than elitist. After surveying the work of thinkers from Machiavelli to Arendt, she proposes a set of solutions grounded in the civic republican tradition.
/="/">
/="/">I press several points in my essay. First, Vergara's linkage of corruption with inequality is promising, but introduces tension between a general problem (domination of the many by the few) and a more specific problem (the …

Forget Pro-Life And Pro-Choice: Refocus Transvaginal Ultrasound Abortion Laws On Medicine, Casey Hughes

Journal of Civil Rights and Economic Development

(Excerpt)

This Note reconciles the divide between the TV US debate and the original intent of abortion regulations to protect women’s health. By first analyzing the medicine and then applying it to the law, this Note proves transvaginal ultrasound regulations are not undue burdens on women’s access to abortion. Part I of this Note discusses transvaginal ultrasounds and their medical use in obstetrics, demonstrating they are not undue burdens, but rather beneficial to women and often necessary to support women’s health prior to abortions. Part II of this Note discusses abortion and ultrasound-related legal decisions and how they apply to …

Is Gilti Constitutional?, Reuven S. Avi-Yonah

Articles

In this article, Avi-Yonah argues that the global intangible low-taxed income regime may be an unconstitutional attempt to tax the foreign-source income of foreign entities, and he offers an alternative.

Strengthening Section 14141: Using Pattern Or Practice Investigations To End Violence Between Police And Communities, Sigourney Norman

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine you are on your way home from work and driving your usual route. You hear police sirens getting louder and louder. You realize you are the subject of their chase, but you cannot imagine why. You slow down and pull over, not wanting to cause confrontation. The officer beats on your car door. You roll down your window and ask why you have been pulled over. The officer informs you that your tail light is broken. Next, the officer orders you out of the car. Your heart races as the officer pats you down. You wonder if the …

Book Review, Secular Surge: A New Fault Line In American Politics, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt

Faculty Scholarship

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …

Modeling Narrowest Grounds, Maxwell Stearns

Faculty Scholarship

The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”

The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …