Constitutional Law Commons^™

Navigating The Rubicon: Constitutionalism And The Inevitability Of The Social Contract, 51 J. Marshall L. Rev. 1 (2017), Lillian M. Spiess

UIC Law Review

No abstract provided.

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Scholarly Articles

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Enduring Originalism, Kevin C. Walsh, Jeffrey A. Pojanowski

Scholarly Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …

Constitutionally Conforming Agency Adjudication, Jennifer L. Mascott

Scholarly Articles

In June 2017 the D.C. Circuit issued a judgment that essentially reaffirms the constitutionality of current appointments procedures for administrative law judges (ALJs) in the Securities and Exchange Commission (SEC). After conducting an en banc hearing in the case, the en banc court split evenly over whether the ALJs are “Officers of the United States” subject to the constitutional requirement of appointment by the president, a department head, or a court of law. The evenly divided vote resulted in the affirmance of the D.C. Circuit’s earlier panel decision finding that the ALJs are not “officers”—continuing the court’s split with the …

Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura

Washington International Law Journal

The most significant political issue facing the legal world in Japan is the drive for constitutional revision led by Prime Minister Shinzo Abe and his Liberal Democratic Party (LDP). This paper situates the revisionist movement within the context of postwar Japanese politics before drawing on theoretical literature in critical legal studies to analyze the LDP’s draft constituion to reveal the magnitude of the proposed changes and to assess the risk they pose to the rule of law in Japan. The paper argues that the proposed draft constitution eschews the languages of the current constitution like “a universal principle of mankind”, …

Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto

Washington International Law Journal

This article analyzes recent change of Japanese governmental interpretation of Article 9 of the Constitution of Japan concerning the right of collective self-defense. This governmental interpretation of Article 9 has been elaborated by the Bureau of Cabinet Legislation. This article criticizes a recent critique of this situation by main stream Japanese constitutional scholars as “crisis of constitutionalism”.

Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

Holier Than You And Me: 'Religious Liberty' Is The New Bully Pulpit And Its Meaning Is Endangering Our Way Of Life, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark Niles

Scholarly Articles in Law Reviews & Journals

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem ofprosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors arep rotectedfrom any liability arisingf rom these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application ofabsolute prosecutorial immunity, in part, by noting that other means of incentivizing appropriate prosecutorial conduct …

Changing The System Without Changing The System: How The National Popular Vote Interstate Compact ​Would Leave Non-Compacting States Without A Leg To Stand On, Jillian Robbins

Cardozo Law Review de•novo

This Note will discuss the constitutional and legal implications of the NPVIC, and will explore the strengths and weaknesses of the arguments both for and against its implementation. It will argue that the NPVIC is constitutional, despite many opponents’ views that it is not, because it does not encroach on federal supremacy or threaten the political relevance or rights of non-compacting states. This Note proposes that if a lawsuit between the states resulted from the enactment of the NPVIC, even if the merits of the claim are constitutional, the United States Supreme Court should dismiss these cases because the states …

Certain Certiorari: The Digital Privacy Rights Of Probationers, Daniel Yeager

Faculty Scholarship

In a recent oral argument, a judge on the California Court of Appeal told me they had "at least 50" pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices. As counsel of record in three of those cases, I feel positioned to comment on this hot topic within criminal law. My intention here is less to reconcile California's cases on suspicionless searches of probationers' digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Regulating Gun Rentals, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

A machine gun overpowers a nine-year-old girl, erratically spraying bullets and accidentally killing her instructor; a perturbed mother slays her son and then takes her own life; a convicted felon circumvents federal prohibitions to access a firearm to commit suicide; and, perhaps most notably, Navy SEAL war veteran Chris Kyle, focus of the movie “American Sniper,” is murdered while attempting to help another veteran recover from post-traumatic stress disorder. We have all seen the headlines, but we have largely ignored the source of this heartbreak. The ramifications of these examples are not merely cinematic, but also involve families suffering from …

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

Brooklyn Law Review

Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? A careful assessment of the federal political process suggests that the Supreme Court itself should overturn Quill in the Court’s role as guardian of the states against federal commandeering. A combination of factors underlay this conclusion: the tactical advantage that Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of …

Denying Certiorari In Bell V. Itawamba County School Board: A Missed Opportunity To Clarify Students’ First Amendment Rights In The Digital Age, Elizabeth A. Shaver

Brooklyn Law Review

In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District. Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds. In 2015, the Fifth Circuit Court …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …

First Amendment Right To A Remedy, Benjamin Plener Cover

Articles

Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion …

Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel

Articles

No abstract provided.

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Scholarly Articles

One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases- National Federation of Independent Business v. Sebelius and King v. Burwell- demonstrate both the nature and the limits of his success in that effort.

These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …