Constitutional Law Commons^™

Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Part I and Part II of this article discuss the consequences of Crawford v. Washington for domestic violence victims and detail the problem of domestic violence in America, including the current prosecution strategies and challenges in domestic violence cases. Part III reviews the evolution of confrontation law jurisprudence. Part IV sets forth a proposed Crawford-compliant procedure that also protects domestic violence victims. Part V addresses anticipated objections to the prompt-post arrest confrontation hearing.

Children's Rights In The Midst Of Marriage Equality: Amicus Brief In Obergefell V. Hodges By Scholars Of The Constitutional Rights Of Children, Tanya Washington, Susannah Pollvogt, Catherine Smith, Lauren Fontana

Scholarly Articles

Many scholars have called for the acknowledgement and treatment of children's rights as constitutionally protected and enforceable, and Supreme Court precedent establishes that the government may not punish children for matters beyond children's control. Same-sex marriage bans and non-recognition laws, which are collectively referred to as marriage bans, impose prohibited punishment on children for being born into, or parented by, same-sex families. States argue that marriage is the optimal familial environment for children, yet marriage bans categorically exclude an entire class of children -- children in same-sex families -- from the legal, economic, and social benefits of marriage. In response …

Effectively Regulating E-Cigarettes And Their Advertising—And The First Amendment, Eric N. Lindblom

O'Neill Institute Papers

If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being …

The Reasonability Of California Groundwater Policies In Light Of The Drought, Lindsey Pace

UC Law Constitutional Quarterly

California is America's largest agricultural farming state. Agriculture in the Central Valley is a multimillion dollar industry. California is the fifth largest supplier of food in the world. The productivity of the agricultural sector of the Central Valley is one reason why California could overtake Brazil this year as the world's seventh largest economy. The agricultural sector produces over $30 billion-dollars' worth of America's supply of almonds, milk, cattle, grapes, strawberries, walnuts, lettuce, hay, tomatoes, and more. Additionally the state produces over 400 commodities and nearly half of all US-grown fruits, vegetables, and nuts. California's robust agriculture sector is the …

Constitutionalism Outside The Courts, Ernest A. Young

Faculty Scholarship

This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and …

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez

Faculty Scholarship

No abstract provided.

Professor Greenawalt's Unfashionable Idea, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Outsourcing, Data Insourcing, And The Irrelevant Constitution, Kimberly N. Brown

Georgia Law Review

Long before revelations of the National Security Agency's data collection programs grabbed headlines, scholars and the press decried the burgeoning harms to privacy that metadata mining and new surveillance technologies present. Through publicly accessible social media sites, web-tracking technologies, private data mining consolidators, and its own databases, the government is just a mouse click away from a wealth of intimate personal information that was virtually inaccessible only a decade ago. At the heart of the conundrum is the government's ability to source an unprecedented amount of personal data from private third parties. This trail of digital information is being insourced …

Our Constitutional Commons, Brigham Daniels, Blake Hudson

Georgia Law Review

While much has been written about the U.S. Constitution, very little if anything at all, has been said about the ways in which the Constitution shares attributes with the commons. This Article examines the Constitution and the efforts to influence the shape and scope of its application through the lenses developed by scholars for assessing both common good and public good resources. Focusing on these interrelated lenses provides a unique perspective on both the U.S. Constitution and those attempting to influence its text and its interpretation. The synergy and interaction between the common good and public good dimensions of the …

Confronting The Overcriminalization Of America, 48 J. Marshall L. Rev. 757 (2015), Timothy P. O'Neill

UIC Law Review

No abstract provided.

Deboer V. Snyder: A Case Study In Litigation And Social Reform, Wyatt Fore

Michigan Journal of Gender & Law

On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.

The Supreme Digital Divide, Mary Graw Leary

Scholarly Articles

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and …

Rights, Privileges, And The Future Of Marriage Law, Adam J. Macleod

Scholarly Articles

On the eve of its final triumph, has the cause of marriage equality fallen short? This article discusses persistent differences in the incidents that attach to same-sex marriages versus man-woman marriages. It examines these in light of the distinction between fundamental rights and concessions of privilege in marriage law, and in common law constitutionalism generally. That examination suggests that the norms of natural marriage are likely to reassert themselves in positive law, notwithstanding the U.S. Supreme Court's recent marriage jurisprudence. Finally, the article suggests that lawmakers would do well to consider how additional concessions of privilege can best serve the …

Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi

Scholarly Articles

Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay customers in her restaurant). Threatened with violence over her unpopular religious belief, the owner was forced to close the restaurant, uncertain if she could ever reopen.

Leading up to oral argument in the same-sex marriage cases, it was reasonable to wonder whether the Indiana episode was …

Constitutional Contraction: Religion And The Roberts Court, Marc O. Degirolami

Scholarly Articles

This Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its …

Between Two Palm Trees: Reading The Constitution In Paradise, Derek A. Webb

Scholarly Articles

For as long as we have had a Constitution, we have been debating how to interpret it. With the conclusion of the Supreme Court's recent 2013 term and its handful of closely divided, hotly contested cases, we can rest safe in the assumption that, despite the notable uptick in unanimous decisions issued by the Court, the figurative "end of history" in constitutional interpretation, in which the major partisans in our annual Constitutional skirmishes lay down their arms and settle upon one particular interpretive lens through which to read the Constitution, is nowhere in sight. If Alexander Hamilton and James Madison, …

Hands Up, Don't Shoot: Policing, Fatal Force, And Equal Protection In The Age Of Colorblindness, Zach Newman

UC Law Constitutional Quarterly

This note discusses race, policing, the use of fatal force, and the Black Lives Matter movement, contextualizing it within the "prison industrial complex," the "New Jim Crow," the hegemony of colorblindness and postracialism, and jurisprudential limitations placed on Equal Protection. It argues that narrow legal reforms of policing, like body cameras or increased training, cannot be conceived of as complete solutions. Although these reforms are important, they must be connected to critiques of and actions against overarching structures of stratification, subordination, and social control in advanced capitalism. Contemporary policing is one manifestation of a deeply flawed and racialized criminal punishment …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov

Faculty Scholarship

No abstract provided.