Constitutional Law Commons^™

Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn

Georgia Journal of International & Comparative Law

No abstract provided.

Police, State Security Forces And Constitutionalism Of Human Rights In Zambia, Charles Mwalimu

Georgia Journal of International & Comparative Law

No abstract provided.

Immigration - Asylum - Deportation - Standards To Be Met By Illegal Aliens Applying For Withholding Of Deportation And Political Asylum, Mendoza Perez V. Ins, 902 F.2d 760 (9th Cir. 1990), Theodosia Gavatides

Georgia Journal of International & Comparative Law

No abstract provided.

November 2, 2014: Today’S Papers, Bruce Ledewitz

Hallowed Secularism

Blog post, “Today’s Papers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Procedural Rights At Sentencing, Carissa Byrne Hessick, F. Andrew Hessick

Notre Dame Law Review

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems—systems that limit sentencing factors and specify particular punishments based on particular facts—defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems—systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion—defendants do not enjoy …

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Notre Dame Law Review

This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy.

Due Process Disaggregation, Jason Parkin

Notre Dame Law Review

One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on “the generality of cases, not the rare exceptions.” A more granular approach to due process rules, the …

Parting The Chevron Sea: An Argument For Chevron's Greater Applicability To Cabinet Than Independent Agencies, Andrew T. Bond

Notre Dame Law Review

This Note argues that cabinet agencies are better suited to receive Chevron deference than independent agencies because voters should desire such policy decisions to be made by those closest to electoral accountability, rather than unelected Article III judges with life-tenure. In other words, the judiciary should accept the countermajoritarian difficulty as fundamentally true and review cabinet agency decisions in light of Chevron deference. Part I examines the revolutionary decision of Chevron and its aftermath. Central to Part I is an inquiry into whether Chevron should be applied on a case-by-case or across-the-board basis, and whether Chevron has usurped the judiciary’s …

Two Tests Unite To Resolve The Tension Between The First Amendment And The Right Of Publicity, Dora Georgescu

Fordham Law Review

    The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

    While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of …

In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan

Faculty Publications

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child …

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty …

Death, Desuetude, And Original Meaning, John F. Stinneford

UF Law Faculty Publications

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker

Faculty Scholarship

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of “ripeness” requiring most Fifth Amendment regulatory-takings claimants to seek “just compensation” in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora’s box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs the …

Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …

Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein

Maryland Law Review

During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These …

Death, Desuetude, And Original Meaning, John F. Stinneford

William & Mary Law Review

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

William & Mary Law Review

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret …

Strange Bedfellows: The Federal Constitution, Out-Of-State Nongrantor Accumulation Trusts, And The Complete Avoidance Of State Income Taxation, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

With the maximum rate of federal income tax at 39.6 percent, the Medicare surtax on investment income of 3.8 percent, and some state income tax rates exceeding 9 percent, taxpayers in the highest brackets have been seeking to develop strategies to lessen the tax burden. One strategy that has been receiving increased attention is the use of a highly specialized trust known as the NING, a Nevada incomplete gift nongrantor trust, which eliminates state income taxation of investment income altogether without generating additional federal income or transfer taxes. A major obstacle standing in the way of accomplishing this objective, however, …

Rights Speech, Timothy Zick

Faculty Publications

Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …

Perpetuities And The Genius Of A Free State, Joshua C. Tate

Vanderbilt Law Review

Legal history, like all history, is inevitably a speculative affair. No one can be sure what the editors of Justinian's Digest might have excised from long-lost works of classical Roman law; nor can one know for certain what went through the minds of certain justices of the U.S. Supreme Court in the mid-twentieth century when they formed and reformed their views on Roosevelt's New Deal. Of course, scholars can try to chip away at this uncertainty: great progress can be made through educated guesses and learned theories. But certainty about the past is reserved for those who lived in it. …