Constitutional Law Commons^™

January 2, 2015: What Obama Can Do On Iran, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Obama Can Do On Iran“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Transnational Business Governance Interactions Working Papers

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the …

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Transnational Business Governance Interactions Working Papers

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the …

State (Un)Separated Powers And Commandeering, Aaron P. Brecher

Res Gestae

This Essay argues that the Court’s line between state judges and other state officials is not as clean as the case law suggests. Specifically, early state constitutions, as well as the British constitutional order prevailing before the U.S. Constitution was enacted—which did not separate powers as rigidly as the U.S. Constitution—combine to undermine the distinction. Taking this line of analysis seriously is not to deny that commandeering state executive or legislative officials raises federalism concerns. But paying more careful attention to early state conceptions of the separation of powers furthers federalist goals in another way: it engenders respect for the …

Public Interest Lawyering & Judicial Politics: Four Cases Worth A Second Look In Williams-Yulee V. The Florida Bar, Ruthann Robson

Publications and Research

This "First Look" Essay argues that the Court should consider public interest lawyering when it decides a First Amendment challenge to the Canon prohibiting judicial candidates from soliciting money in Williams-Yulee v. The Florida Bar. It suggests that four cases are worth a "second look": Republican Party of Minnesota v. White (2002); Caperton v. A.T. Massey Coal Co. (2009); Shelley v. Kraemer (1948); and a Florida Supreme Court case involving discipline of a judge, In re Hawkins.

Kermit Gosnell’S Babies: Abortion, Infanticide And Looking Beyond The Masks Of The Law, Richard F. Duncan

Nebraska College of Law: Faculty Publications

If, as Laurence Tribe has observed, “all law tells a story,” this Article tells two stories occurring forty years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013. As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,” and therefore they are stories that must be told time and again, until we get …

The Rhetoric Of Constitutional Absolutism, Eric Berger

Nebraska College of Law: Faculty Publications

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Spokeo V. Robins And The Constitutional Foundations Of Statutory Standing, Maxwell Stearns

Faculty Scholarship

In Spokeo v. Robins, the Supreme Court granted certiorari to address the following question: Does Congress have the power to confer standing upon an individual claiming that a privately owned website violated its federal statutory obligation to take specified steps designed to promote accuracy in aggregating and reporting his personal and financial data even if the resulting false disclosures did not produce concrete harm? This somewhat arcane standing issue involves congressional power to broaden the scope of the first of three constitutional standing requirements: injury in fact, causation, and redressability. Although the case does not directly address the prudential …

HarperOoning, GRoeIng And BrownIng The First Amendment, Mark A. Graber

Faculty Scholarship

No abstract provided.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Justice Scalia's Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell

Scholarly Articles

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology's encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia's opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, …

An Addendum In Light Of Recent Developments, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Case Study: Webster V. Susquehanna Pole Line Company Of Harford County (1910), Alyssa E. Leonhardt

Legal History Publications

At the turn of the 20th century, the State of Maryland witnessed an increase in the demand for hydroelectricity. Several public utility companies raced to construct a hydroelectric facility on the Susquehanna River, by which they could distribute electricity to Baltimore, Harrisburg, Philadelphia, and Wilmington. This case study examines the use of eminent domain by one such company, the Susquehanna Pole Line Company of Harford County, for the purpose of erecting a continuous transmission line, originating at McCall’s Ferry Dam, the first hydroelectric facility built on the Susquehanna River. This project was subsequently challenged by Harford County residents, whose property …

The Constitutional Dimensions Of Sports Franchise Takings: Lessons Learned From The Baltimore Colts, Travis Bullock

Legal History Publications

This paper chronicles the history of the Baltimore Colts up to and during that franchises’ relocation from Baltimore City to Indianapolis. Although Baltimore City attempted to prevent the relocation by taking the franchise through eminent domain, the Colts were no longer subject to Maryland’s, and therefore the city’s, jurisdiction. By moving, the Colts exposed an important limitation on State eminent domain authority; that condemned property must be located within a state’s territory in order to be subject to eminent domain. Further, the commerce clause would likely have prevented the city from condemning the Colts.

The Constitutional Limitation On Trademark Propertization, Peter J. Karol

Law Faculty Scholarship

The following article seeks to apply the retrenchment in constitutional Commerce Clause jurisprudence of the last few decades to the phenomenon of trademark propertization, the expansive and largely federal movement towards protecting trademarks as assets apart from any connection to referent goods and services. Trademark scholars have filled the trademarks literature with critiques of propertization that generally object, on policy and historical grounds, to the trend and offer constructions of the Lanham Act designed to check its progress. With the notable exception of an article published in 2000 by Professor Kenneth Port, however, the literature has largely avoided addressing the …

Standing To View Other People's Land: The D.C. Circuit's Divided Decision In Sierra Club V. Jewell, Bradford Mank

Faculty Articles and Other Publications

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it …

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

“When Mercy Seasons Justice”: Interstate Recognition Of Ex-Offender Rights, Wayne A. Logan

Scholarly Publications

To the great relief of many, states are now rethinking their draconian criminal justice policies of the past several decades. In addition to shrinking prison and jail populations, reforms are underway to expand opportunities for relief from the collateral consequences of conviction, such as the loss of the right to vote, serve as a juror, or work in certain occupations, which can impede the ability of ex-offenders to successfully reintegrate into society. In coming years, as states seek to reduce their high recidivism rates, such relief efforts will likely continue to grow in number; as they do, we should expect …

Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the State may appeal a trial court’s suppression of a victim’s dying declaration based on the legislative intent of Section 12-302(c)(4)(i) of the Maryland Code, Courts and Judicial Procedure Article (“section 12-302(c)(4)(i)”). Hailes v. State, 442 Md. 488, 497-98, 113 A.3d 608, 613-14 (2015). The court further held that a victim’s statement, made while on life support, was a dying declaration regardless of the fact that the victim died two years after making the statement. Id. at 506, 113 A.3d at 618. Finally, the court held that the Confrontation Clause of the …