Constitutional Law Commons^™

Class Actions And Justiciability, Sergio J. Campos

Florida Law Review

A lingering issue in class action law concerns the case or controversy requirement of Article III, otherwise known as the requirement of justiciability. For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative?

This Article argues that the answer should be none of the above—it should be the class attorney. This Article first shows that the function of the class action is to assign dispositive control of, and a partial beneficial interest in, the class members’ claims to the class attorney. Put …

Same-Sex Marriage And Loving V. Virginia: Analogy Or Disanalogy?, Ronald Turner

Washington and Lee Law Review Online

In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an …

A New Understanding Of Gang Injunctions, Wesley F. Harward

Notre Dame Law Review

There were over 1.4 million active gang members in the United States as of 2011—an increase of forty percent in gang membership from 2009. It is estimated that “[g]angs are responsible for an average of 48 percent of violent crime in most jurisdictions and up to 90 percent in several others.” Many of the more than 33,000 gangs are increasing in sophistication and organization. Additionally, these “[g]angs are increasingly engaging in nontraditional gang-related crime, such as alien smuggling, human trafficking, and prostitution.”

The rise in gang membership and gang violence “has overwhelmed conventional law enforcement techniques.” State legislatures, city attorneys, …

Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski

Notre Dame Law Review

This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and “good cause” limitations on the President’s removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President’s appointment power—and with good reason, given the ubiquity of partisan balance requirements and the executive branch’s historical acquiescence to them. However, the Supreme Court’s decision in Free …

The Factual Reality Of Koontz V. St. Johns, Eric Dean Hageman

Notre Dame Law Review Reflection

The Court’s opinion in Koontz has elicited many negative reactions in academia, most of which focus on the expansion of Nollan and Dolan to monetary exactions. Criticisms run the gamut: some scholars argue that the Court was wrong to ignore the environmental impact of land developments, while others suggest the Court gave the same consideration too much credence. These criticisms are likely premature and necessarily speculative, since the Court decided the case less than two years ago.

Scholars have scrutinized this case’s factual and procedural history less closely, and those elements may justify the Court’s holding. Two often-overlooked facts are …

Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore

Notre Dame Law Review

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court’s two most prominent approaches for gauging presidential power—Justice Jackson’s tripartite framework and the historical gloss on executive power—congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court’s reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Notre Dame Law Review

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

Bond V. United States, Dean M. Nickles

Notre Dame Law Review Reflection

Although the majority’s outcome was correct, the application of the clear statement rule in this situation seems incorrect. The majority misconstrues the statute not to reach Mrs. Bond’s conduct when it should have done so. The concurrences properly assert that despite the conduct here falling within the clear definition of the statute, the Court should have reversed the conviction on constitutional grounds. As a result of this decision, Congress should now plan to make clarifying statements about the scope of the statute in order to avoid the clear statement problem identified here.

Separately, although only dicta, Justice Scalia’s assertion that …

Show And Tell?: Students' Personal Lives, Schools, And Parents, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Public schools learn about their students' personal lives in many ways. Some are passive: a teacher observes a student kissing someone, or overhears a conversation among friends. But schools also engage in more active information-gathering about students' personal lives, through surveys and informal conversations between students and teachers, administrators, school psychologists, counselors, coaches, and other personnel. This Article explores the competing privacy considerations that result from such encounters. Once schools have learned highly personal information about their students, does it violate those students' privacy rights to disclose that information to their parents? Or does keeping the information secret violate the …

The Future Of Federalism, From The Bottom Up, Anthony Johnstone

Montana Law Review

No abstract provided.

Towards A Universal Field Theory Of National Private Rights And Federalism, Roderick M. Hills Jr.

Montana Law Review

No abstract provided.

Tribal Disruption And Federalism, Matthew L.M. Fletcher

Montana Law Review

No abstract provided.

Will Uncooperative Federalism Survive Nfib?, Abigail R. Moncrieff, Jonathan Dinerstein

Montana Law Review

No abstract provided.

Hijacking Justice: Assessing The Emergency Driven Analysis Of Confrontation Clause Jurisprudence, Steven C. Berlowitz

Cardozo Law Review

No abstract provided.

The Intracorporate Conspiracy Trap, J. S. Nelson

Cardozo Law Review

In the recent case of Commonwealth v. Lynn, Pennsylvania prosecuted a Roman Catholic priest who had not abused children himself but who, to protect the archdiocese that employed him, covered up information about priests who had abused children and reassigned the priests to new parishes. This case was the first of its kind to bring criminal charges against an official of the Church solely for how he supervised the careers of priests to protect his employer.

Because the intracorporate conspiracy doctrine prohibits it, the state - as is now typical of both state and federal jurisdictions around the country …

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.

Indemnification As An Alternative To Nullification, Robert A. Mikos

Montana Law Review

No abstract provided.

Billings Gazette V. City Of Billings: Examining Montana's New Exception To The Public's Right To Know, Adam Wade

Montana Law Review

No abstract provided.

Rethinking The Order Of Battle In Constitutional Torts: A Reply To John Jeffries, Nancy Leong

Northwestern University Law Review

No abstract provided.