Constitutional Law Commons^™

Mccleary: Positive Rights, Separation Of Powers, And Taxpayer Protections In Washington's State Constitution, Kristen L. Fraser

Washington Law Review Online

No abstract provided.

How The Lone Star State Reached The Entire Nation: The Need To Limit The Nationwide Injunction Against Dapa And Daca In United States V. Texas, Denise Cartolano

Florida A & M University Law Review

On June 23, 2016, the Supreme Court of the United States was ultimately deadlocked in the case United States v. Texas. In just one line, the Supreme Court shattered the dreams of millions of undocumented children and their parents who were residing in the United States; those like Anthony and Maria.The Supreme Court's utterance of these nine words, "[t]he judgment is affirmed by an equally divided Court," created instability and uncertainty amongst undocumented children, students, workers and parents. This divided decision upheld a nationwide injunction against President Obama's executive action creating DAPA and expanding DACA.

Although the stories of Anthony …

Political Support And Structural Constitutional Law, David Landau

Scholarly Publications

The field of comparative constitutional law has paid insufficient attention to judicial decisions on structural issues. This Article seeks to begin the process of constructing a comparative analysis of structural constitutional jurisprudence. Using both theoretical analysis and a case study, it seeks to demonstrate that courts are more likely to be successful in their programs of structural constitutional law when they enjoy support from other political and social actors. This simple point has significant implications for constitutional theory. First, it suggests that the structural safeguards theory long assumed in United States constitutional law may have only limited applicability. Under common …

Obergefell And The "New" Reproduction, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

Holmes And Brennan, Howard Wasserman

Faculty Publications

This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas: 1) the connections …

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson

Faculty Publications

In February 2016, the World Health Organization (WHO) declared a “public health emergency of international concern” due to the increased clusters of microcephaly, Guillain-Barré Syndrome, and other neurological disorders in areas affected by the Zika virus. That declaration came in the wake of the West Africa Ebola crisis. Back to back declarations by WHO of the highest threat level for an international public health emergency underscores how quickly pathogens can now spread and cause devastation across borders. It also highlights the need to implement lessons learned from each pandemic crisis without delay. These crises demonstrate that laws to curtail the …

In Defense Of Shelby County’S Principle Of Equal State Sovereignty, Jeffrey M. Schmitt

School of Law Faculty Publications

In Shelby County v. Holder, the Supreme Court struck down a key aspect of the Voting Rights Act of 1965 based on “the principle that all States enjoy equal sovereignty.” Legal scholars have exhaustively attacked Shelby County’s equal sovereignty principle with a surprising degree of unanimity and contempt. These critics argue that the principle is theoretically unworkable, finds no support in the Supreme Court’s precedent, is inconsistent with constitutional history, undermines individual rights, and is tainted by its association with slavery and Jim Crow. This Article responds to such criticism by arguing that the principle of equal sovereignty is a …

Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler

Scholarly Publications

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

A line of Supreme Court decisions completely rejected this understanding …

Second- Order Logrolling: The Impact Of Direct Legislative Amendments To State Constitutions

Nova Law Review

The year 2018 marks the modern Florida Constitution's golden anniversary- a time of celebration and possible consternation.

Guns, Gays, And Ganja, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

The Supreme Court Acknowledges Congress’ Authority To Confer Informational Standing In Spokeo, Inc. V. Robins, Bradford Mank

Faculty Articles and Other Publications

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III standing beyond what was considered an injury under the American or English common law. Some commentators had thought Spokeo might overrule the Court’s prior decisions in Akins and Public Citizen, which both held that a plaintiff may have standing based solely upon …

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

The Harm In Hate Speech: A Critique Of The Empirical And Legal Bases Of Hate Speech Regulation, John T. Bennett

UC Law Constitutional Quarterly

Calls for hate speech censorship are largely premised upon the existence of certain social harms, including racial and gender inequalities, which are supposedly reinforced by hate speech. These inequalities, however, could be caused by a host of cultural and behavioral factors completely unrelated to hate speech, racial animus, discrimination, or any structural cause. The causal argument presented here has significant implications for the constitutionality of hate speech regulation. This article directly confronts the constitutional flaws, normative concerns, and empirical weaknesses inherent in a substantial body of hate speech scholarship. This article critically analyzes the legal and sociological premises of hate …

Recent Development: Williams V. State: A Confession Is Voluntary Unless The Defendant Unambiguously Invokes His Constitutional Right To Remain Silent Or The Confession Is Obtained Through Coercion Or Inducement, Pascale Cadelien

University of Baltimore Law Forum

The Court of Appeals of Maryland held that “I don’t want to say nothing. I don’t know,” is an ambiguous invocation of the right to remain silent. Williams v. State, 445 Md. 452, 455, 128 A.3d 30, 32 (2015). The court reasoned that the defendant’s addition of “I don’t know” to his initial assertion “I don’t want to say nothing” created uncertainty about whether he intended to invoke his right to remain silent. Id. at 477, A.3d at 44. This allowed a reasonable officer to interpret his statement as an “ambiguous request to remain silent.” Id. Furthermore, the officers’ implication …

Judgment Without Notice: The Unconstitutionality Of Constructive Notice Following Citizens United, Carliss N. Chatman

Scholarly Articles

Citizens United v. Federal Election Commission positions a corporation as an entity entitled to constitutional rights equal to the rights of natural persons. In many situations, this holding may be the impetus for reform and reconsideration of state restrictions on corporate rights that were problematic before the decision. The operation of corporate statutes on corporations chartered in one state but doing business in another state as a foreign corporation is an area in need of this Citizens United-inspired review. Although most corporations operate as foreign corporations outside of their state of incorporation, neither the constitutional validity of corporate withdrawal …

Anti-Disruption Statutory Construction, Jonathan Adler

Faculty Publications

During his first ten years on the Supreme Court, Chief Justice John Roberts has adopted a pragmatic approach to statutory interpretation that appears to place a higher priority on avoiding disruptive consequences than on any particular interpretive methodology. Prepared for the symposium, “Ten Years the Chief: Examining a Decade of John Roberts on the Supreme Court,” at the Benjamin N. Cardozo School of Law, this brief essay argues that the Chief Justice’s approach to statutory interpretation exhibits a “Burkean minimalism” that seeks to reduce seismic effect of the Court’s decisions. In particular, the Chief Justice is drawn toward statutory interpretations …

The Strange Career Of Private Takings Of Private Property For Private Use, Jan G. Laitos

Sturm College of Law: Faculty Scholarship

Part I summarizes the two private entities thattraditionally have been conferred the power to take private property for their own private use: (1) natural resource developers and (2) common carriers involved in, andresponsible for, our country’s transportation, storage, and distribution (TS&D) system for energy infrastructure—pipelines, electrical transmission lines, and rail lines. Part II considers the traditional rationale for those private takings, which typically relies on some version ofthe notion thatthe public atlarge may, or will, eventually benefit from this private exercise of eminent domain. Part III explores the four central problems associated with these kinds of private takings: (1) the …

A Birthday For The Upper Peninsula, Mark Ruge

Upper Country: A Journal of the Lake Superior Region

Everyone and everything should have its own birthday, particularly a special place like Michigan's Upper Peninsula, which does not. In this article, the author traces the political machinations of Michigan and the Upper Peninsula with a goal of finding the most appropriate birthday. He and the attendees at the Sonderegger Symposium XVI, sponsored by the Center for U.P. Studies, at Northern Michigan University, settle on December 14, 1836, the date when the final condition was met to establish the boundaries of Michigan as a state—boundaries that for the first time included the entirety of the Upper Peninsula as we know …