The Supreme Court And Religious Liberty,
2015
Marquette University Law School
Neuro Lie Detection And Mental Privacy,
2015
University of Maryland Francis King Carey School of Law
Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano
Maryland Law Review
New technologies inevitably raise novel legal questions. This is particularly true of technologies, such as neuro lie detection, that offer new ways to investigate crime. Recently, a number of scholars have asked whether neuro lie detection testing is constitutional. So far, the debate has focused on the Fifth Amendment—specifically whether evidence gathered through neuro lie detection is constitutionally admissible because it is “physical” in nature or inadmissible because it is “testimonial” in nature. Under current Supreme Court doctrine, this Fifth Amendment debate is intractable. However, the more fundamental question of whether the government can compel individuals to undergo a neuro …
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence,
2015
University of Maryland Francis King Carey School of Law
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff
Maryland Law Review
No abstract provided.
A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S),
2015
University of Maryland Francis King Carey School of Law
A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown
Maryland Law Review
No abstract provided.
Emergency Takings,
2015
Brooklyn Law School
Threshold Liberty,
2015
University of New Mexico School of Law
Threshold Liberty, Dawinder S. Sidhu
Cardozo Law Review
The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …
Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act,
2015
Benjamin N. Cardozo School of Law
Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein
Cardozo Law Review
No abstract provided.
Title Ix Giveth And The Religious Exemption Taketh Away: How The Religious Exemption Eviscerates The Protection Afforded Transgender Students Under Title Ix,
2015
Benjamin N. Cardozo School of Law
Title Ix Giveth And The Religious Exemption Taketh Away: How The Religious Exemption Eviscerates The Protection Afforded Transgender Students Under Title Ix, Amanda Bryk
Cardozo Law Review
No abstract provided.
Tone Deaf To The Past: More Qualms About Public Meaning Originalism,
2015
Stanford University
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Fordham Law Review
With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …
The Lost History Of The Political Question Doctrine,
2015
William & Mary Law School
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
Faculty Publications
This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …
Foreword: Private And Public Revisited Once Again,
2015
University of Maryland Francis King Carey School of Law
Foreword: Private And Public Revisited Once Again, Mark A. Graber
Maryland Law Review
No abstract provided.
Evangelical Reform And The Paradoxical Origins Of The Right To Privacy,
2015
University of Maryland Francis King Carey School of Law
Evangelical Reform And The Paradoxical Origins Of The Right To Privacy, John W. Compton
Maryland Law Review
No abstract provided.
Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law,
2015
University of Maryland Francis King Carey School of Law
Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law, Keith Whittington
Maryland Law Review
No abstract provided.
Telescoping And Collectivizing Religious Free Exercise Rights,
2015
University of Maryland Francis King Carey School of Law
Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr
Maryland Law Review
No abstract provided.
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech,
2015
Fordham University School of Law
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell
Fordham Law Review
The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …
Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States,
2015
Campbell University School of Law
Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States, Zachary C. Bolitho
West Virginia Law Review
No abstract provided.
Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law,
2015
Albany Law School
Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law, J. Sephen Clark
West Virginia Law Review
No abstract provided.
The Moral Reading All Down The Line,
2015
Boston University School of Law
The Moral Reading All Down The Line, James E. Fleming
Faculty Scholarship
Michael W. McConnell has written an elegant and illuminating article about constitutional interpretation.' He seeks to show how five major methodological approaches fit together. The five approaches he discusses are: "originalism, precedent, longstanding practice, judicial restraint, and living constitutionalism (here called the normative approach)."'2 He distinguishes two camps with respect to these approaches. One camp, he notes, "advocates for (or against) a particular approach ... on the assumption that these approaches are mutually inconsistent and that the task is to determine which is best . . . .3 The other camp "treats the various common approaches as mere tools in …
Time, Institutions, And Adjudication,
2015
Boston Univeristy School of Law
Time, Institutions, And Adjudication, Gary S. Lawson
Faculty Scholarship
Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …
A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform,
2015
Singapore Management University
A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform, Maartje De Visser
Research Collection Yong Pung How School Of Law
On January 26, 2014, an overwhelming majority of the National Constituent Assembly of Tunisia approved the country's new constitution. Drafted in the aftermath of the Tunisian revolution, the constitution received considerable international critical acclaim, regarding the manner in which the text had been drafted and adopted as well as its content, notably the entrenchment of a host of fundamental rights and liberties. Comparisons have inevitably been drawn with Egypt's new constitution and those of other Arab nations, with the Tunisian text hailed as one of the most progressive in the region, providing the foundations for a modern and credible democracy. …
