Constitutional Law Commons^™

May 13, 2015: Religion Trends In America, Bruce Ledewitz

Hallowed Secularism

Blog post, “Religion Trends in America“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 12, 2015: Reading Heidegger I, Bruce Ledewitz

Hallowed Secularism

Blog post, “Reading Heidegger I“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 10, 2015: Two Odd Things About The Shootings At The Cartoon Contest Last Week, Bruce Ledewitz

Hallowed Secularism

Blog post, “Two Odd Things about the Shootings at the Cartoon Contest Last Week“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Marriage By Any Other Name: Why Civil Unions Should Receive Federal Recognition, Deborah A. Widiss, Andrew Koppelman

Indiana Journal of Law and Social Equality

The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses—civil unions and domestic partnerships—that were created by states to serve as functional marriages. Even though all the states that created such alternative statuses now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or …

Autism Charter Schools: Legally Vulnerable Or Viable?, Janet R. Decker, Keshia Seitz, Bruce Kulwicki

Indiana Journal of Law and Social Equality

Perhaps due to the dramatic increase in children diagnosed with autism, a new type of charter school has emerged that is designed to specifically serve students with autism. If these autism charter schools illegally segregate students with autism from typically developing peers, they are vulnerable to legal challenges. In this Article, we identified many constitutional and statutory violations that could exist at autism charter schools; however, our review of the litigation found that autism charter schools have not been challenged for these legal violations. Instead, we found only one charter school case alleging segregation based on ability level and eight …

Summary Of Manning V. State, 131 Nev. Adv. Op. 26 (May 7, 2015), Scott Lundy

Nevada Supreme Court Summaries

The Court held that it is a constitutional error when the district court fails to notify and confer with the parties when the court receives and responds to a note from the jury indicating that they are deadlocked. The Court further held such error will be reviewed for harmlessness beyond a reasonable doubt.

May 6, 2015: Iconic Picture Of Burning Silliman Hall, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Iconic Picture of Burning Silliman Hall“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

You Have The Right To Remain Silent, But Anything You Don’T Say May Be Used Against You: The Admissibility Of Silence As Evidence After Salinas V. Texas, Andrew M. Hapner

Florida Law Review

In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel Alito emphasized that before a suspect can rely on the privilege against self-incrimination, the suspect must invoke the privilege. Consequently, because silence does not invoke the privilege, and because the petitioner failed to expressly invoke the privilege in words, the prosecutor’s use of his pre-Miranda silence during a noncustodial interrogation did not violate the Fifth Amendment. …

Guilt Without Mens Rea: How Florida’S Elimination Of Mens Rea For Drug Possession Is Constitutional, Marc B. Hernandez

Florida Law Review

The Florida Comprehensive Drug Abuse Prevention and Control Act is almost unique among criminal drug statutes in the United States. Like all states, Florida prohibits the possession, sale, and delivery of certain controlled substances. However, a recent revision of the Florida Comprehensive Drug Act removed Florida’s burden of proving one aspect of defendants’ mens rea in drug cases. Although several cases have challenged the Florida Comprehensive Drug Act for disregarding the traditional role of mens rea in criminal law and for subjecting innocent people to prosecution, the state of Florida continues to prosecute and obtain convictions under the statute.

This …

Democracy, The Constitution, And Legal Positivism In America: Lessons From A Winding And Troubled History, Edward A. Purcell Jr.

Florida Law Review

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with …

Lost In Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Florida Law Review

Prior approaches to examining attorney speech rights have failed to address pretrial publicity in a manner that protects the criminal justice system and the essential roles of the prosecutor and defense attorney therein, as discussed in Part I. Yet the access-to-justice theory, as discussed in Part II, attunes attorney speech rights to the role of the attorney in the proper and constitutional functioning of the justice system. As discussed in Part III, the very nature of the criminal justice system imposes vastly differing obligations and duties on the prosecution and defense and their respective attorney–client relationships. In Part IV, this …

May 4, 2015: Choosing To Be Good Without God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Choosing to be Good Without God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Dominican And Haitian Relations: Changing Constitutions And Migrant Rights, Tiffany Busch

Honors Projects

The Dominican Republic and Haiti share the island of Hispaniola. The two nations’ shared history can best be described as tumultuous. The French and Spanish long fought for control over the small island before ultimately becoming two independent nations. Tensions still exist between the nations. The Dominican Republic, operating under antihaitianismo, fears that the influx of Haitian people will be detrimental to the country’s economic and cultural well-being. As a result, deportations have increased. Human Rights Watch has condemned the Dominican Republic for its unethical deportation methods. Moreover, the Dominican Republic enacted a new constitution in 2010 with more …

American Civil Liberties Union Of North Carolina V. Tata: Manipulation Of The Government Speech Doctrine Through Specialty License Plates, Kaitlin E. Leary

Maryland Law Review Online

No abstract provided.

Voter Rights And Civil Rights Era Cold Cases: Section Five And The Five Cities Project, Paula C. Johnson

Journal of Race, Gender, and Ethnicity

No abstract provided.

Bond V. United States And Information-Forcing Defaults: The Work That Presumptions Do, Paul B. Stephan

Notre Dame Law Review

This Article first places Bond in the context of the Supreme Court’s growing reliance on interpretive presumptions to limit the effect of legislation. While some of the presumptions go back to the early days of the Republic, the current Court has expanded the roster of these devices and strengthened their effect. A review of the treatment of information-forcing defaults in contracts scholarship follows. Contract theory, or more precisely the strand of contract theory that draws on economics, seeks to identify socially optimal rules for contract formation, interpretation, and enforcement. To clarify the specific role of these rules, this Article compares …

Bond'S Breaches, Edward T. Swaine

Notre Dame Law Review

Bond v. United States illustrates a new maxim for today’s Supreme Court: hard cases make no law at all. To be sure, Bond’s bottom line was not particularly difficult. But once the Supreme Court ultimately did take the case, it became hard to decide—at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised.

If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the …

An Intersubjective Treaty Power, Duncan B. Hollis

Notre Dame Law Review

This Article explores whether the Constitution limits the making and implementation of U.S. treaties to subjects of “international” intercourse or concern. It does so in two steps. First, I undertake the existential inquiry, asking if the Constitution requires a nexus between treaties and “international” subject matters. I argue that Justices Alito, Scalia, and Thomas are correct—and the Restatement (Third) is wrong—on the question of whether the Constitution imposes an affirmative subject matter limitation on the treaty power. Various modalities of constitutional interpretation—original meaning, historical practice, doctrine, structure, and prudence—offer evidence in support of some version of an “international concern” test. …

The Boundless Treaty Power Within A Bounded Constitution, Saikrishna Bangalore Prakash

Notre Dame Law Review

I count myself among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution …

Congress's Limited Power To Enforce Treaties, Michael D. Ramsey

Notre Dame Law Review

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. …