Constitutional Law Commons^™

The Demise Of "Drive-By Jurisdictional Rulings", Howard M. Wasserman

Northwestern University Law Review

No abstract provided.

A Foucauldian Call For The Archaeological Excavation Of Discourse In The Post-Boumediene Habeas Litigation, Jonathan David Shaub

Northwestern University Law Review

No abstract provided.

Party Polarization And Congressional Committee Consideration Of Constitutional Questions, Neal Devins

Northwestern University Law Review

No abstract provided.

January 31, 2015: How To Think About Constitutional Government, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to Think About Constitutional Government“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Summary Of Torres V. The State Of Nevada, 131 Nev. Adv. Op. 2, Jenn Odell

Nevada Supreme Court Summaries

The Court determined (1) an investigative stop under NRS 171.123 is transformed into an illegal seizure in violation of the Fourth Amendment when an officer retains a pedestrian’s identification after the suspicion for the original encounter is cured and there is no longer reasonable suspicion to detain the pedestrian; (2) without reasonable suspicion, the discovery of an arrest warrant cannot purge the taint from an illegal seizure.

Summary Of Buzz Stew, Llc V. City Of North Las Vegas, Nevada, 131 Nev. Adv. Op. 1, Stacy Newman

Nevada Supreme Court Summaries

The Court determined that (1) in Buzz Stew I, the Court found no taking occurred under Art. 1 Sec. 8(6) of the Nevada Constitution, and Buzz Stew did not properly amend their complaint to pursue a new taking claim, and (2) a new trial is unwarranted because Buzz Stew cannot prove a taking and the district court did not clearly err by refusing to find a taking and awarding costs to the City.

January 28, 2015: Politics At The Water's Edge, Bruce Ledewitz

Hallowed Secularism

Blog post, “Politics at the Water's Edge“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Original Meaning And The Precedent Fallback, Randy J. Kozel

Journal Articles

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield to contrary precedent.

This Article considers the role of judicial precedent not when it conflicts with the Constitution’s original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The …

Newsroom: Logan On 'Marketplace Of Ideas', Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Testimonial Is As Testimonial Does, Ben Trachtenberg

Florida Law Review

In the decade since Crawford v. Washington declared “testimony” to be the touchstone of the Confrontation Clause, courts—from the humblest criminal trial court to the Supreme Court itself—have struggled with two problems. First, defining “testimonial” has proven difficult. Second, in certain cases, the results of defining “testimonial” as Crawford would seem to require have proven unappealing. Justice Antonin Scalia, the author of the majority opinion in Crawford and the most vocal cheerleader of its new doctrine, has consequently had trouble maintaining a majority of Justices for what would seem to be straightforward applications of the opinion. Professor Richard D. Friedman …

The Mold That Shapes Hearsay Law, Richard D. Friedman

Florida Law Review

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, Professor Friedman argues that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. Friedman argues that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. …

From Wolves, Lambs (Part I): The Eighth Amendment Case For Gradual Abolition Of The Death Penalty, Kevin Barry

Florida Law Review

This spring, the Connecticut Supreme Court will take up a novel question, unprecedented in modern death penalty jurisprudence: Can a state gradually abolish its death penalty? Restated, can it leave the sentences of those currently on death row in place but abolish the death penalty going forward? This Article argues that it can. On simple statutory construction grounds, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although the constitutional considerations are admittedly less straightforward, prospective-only repeals do not offend the Constitution. The death penalty remains constitutional per se under the Eighth Amendment, and “as-applied” challenges under Atkins …

January 24, 2015: More Nihilism On Abortion, Bruce Ledewitz

Hallowed Secularism

Blog post, “More Nihilism on Abortion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Understanding Political Systems: A Comment On Methods Of Comparative Research, T. Koopmans

Georgia Journal of International & Comparative Law

No abstract provided.

Immigration - Due Process - The Availability Of Constitutional Safeguards To Detained Cuban Aliens, Garcia-Mir V. Meese, 788 F.2d 1446 (11th Cir. 1986), Cert. Denied, 107 S. Ct. 289 (1986)., Elizabeth G. Marlowe

Georgia Journal of International & Comparative Law

No abstract provided.

Continuing The Constitutional Dialogue: A Discussion On Justice Stevens's Establishment Clause And Free Exercise Jurisprudence, Alan Brownstein

Northwestern University Law Review

No abstract provided.

A Fixture On A Changing Court: Justice Stevens And The Establishment Clause, Erwin Chemerinsky

Northwestern University Law Review

No abstract provided.

January 21, 2015: We’Re On A Crash Course, Bruce Ledewitz

Hallowed Secularism

Blog post, “We’re On a Crash Course“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Jennings V. Stephens And Judicial Efficiency In Habeas Appeals, Eric O'Brien

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the Supreme Court case Jennings v. Stevens which deals with several areas of federal habeas corpus law and procedure. The Court will consider, inter alia, whether a habeas petitioner who succeeds in federal district court nevertheless needs to request a certificate of appealability to bring an alternate grounds for habeas relief at the appellate level. Further, the Court can resolve a major circuit split on whether a court considering an ineffective assistance of counsel claim should consider each instance of ineffective assistance as a single claim or as all parts of one claim. Eric O'Brien suggests …

Constitutional Law – Warrantless Searches – Whether The Search Incident To Arrest Exception Should Apply To Data Stored On Cellular Phones, Jeremy Ray

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.