Constitutional Law Commons^™

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

The Meaning And Good Of Equality: Toward Enhanced Constitutional Principles, Scott Fitzgibbon

Brigham Young University Journal of Public Law

No abstract provided.

The Constitutionality Of Same-Sex Marriage In Australia (And Other Related Issues), Augusto Zimmermann

Brigham Young University Journal of Public Law

No abstract provided.

Foreground Principles, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …

Respecting Democratic Constitutional Change, Craig M. Scott

Commissioned Reports, Studies and Public Policy Documents

On Monday, January 28, 2013, I was privileged to table, on behalf of the NDP and in my capacity as Official Opposition Critic for Democratic and Parliamentary Reform, Bill C-470, An Act Respecting Democratic Constitutional Change. On the same day, my colleague Romeo Saganash, NDP Critic for Aboriginal Intergovernmental Affairs, tabled Bill C-469 that would require Canadian law and practice to respect the United Nations Declaration on the Rights of Indigenous Peoples. In this way, on that day, the New Democratic Party was making sure that Canadians know that our party sees the building and nurturing of sustainable and cooperative …

Lawrence's Stealth Constitutionalism And Same-Sex Marriage Litigation, Eric Berger

William & Mary Bill of Rights Journal

Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny.

Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked changing …

Social Science Studies And The Children Of Lesbians And Gay Men: The Rational Basis Perspective, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article seeks to determine whether the social science literature on the children of lesbians and gay men precludes the government from relying on child welfare considerations to justify same-sex marriage bans and parenting restrictions affecting lesbians and gay men under the highly deferential rational basis test. Under that test, courts must uphold laws and regulations that have any conceivable basis of fact which is rationally related to a legitimate state interest. After comprehensively reviewing the social science literature, the Article concludes that the empirical evidence showing the lack of an association between parental sexual orientation and the psychological and …

To Cut Or Not To Cut?: Addressing Proposals To Ban Circumcision Under Both A Parental Rights Theory And Child-Centered Perspective In The Specific Context Of Jewish And Muslim Infants, Andrew E. Behrns

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Remedies And Public Interest Balancing, John M. Greabe

William & Mary Bill of Rights Journal

The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least when …

Crossing The Final Border: Securing Equal Gender Protection In Immigration Cases, Michelle L. Sudano

William & Mary Bill of Rights Journal

No abstract provided.

Dodd-Frank's Title Ii Authority: A Disorderly Liquidation Of Experience, Logic, And Due Process, Chadwick Welch

William & Mary Bill of Rights Journal

No abstract provided.

Toward A Right To Litigate Ineffective Assistance Of Counsel, Ty Alper

Washington and Lee Law Review

No abstract provided.

Why Gideon Failed: Politics And Feedback Loops In The Reform Of Criminal Justice, Donald A. Dripps

Washington and Lee Law Review

No abstract provided.

Heeding Gideon’S Call In The Twenty-First Century: Holistic Defense And The New Public Defense Paradigm, Robin Steinberg

Washington and Lee Law Review

No abstract provided.

The Problem With Misdemeanor Representation, Erica Hashimoto

Washington and Lee Law Review

No abstract provided.

Gideon Skepticism, Alexandra Natapoff

Washington and Lee Law Review

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, it generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic …

Crashing The Misdemeanor System, Jenny Roberts

Washington and Lee Law Review

No abstract provided.

Two Rights To Counsel, Josh Bowers

Washington and Lee Law Review

No abstract provided.

Too Poor To Hire A Lawyer But Not Indigent: How States Use The Federal Poverty Guidelines To Deprive Defendants Of Their Sixth Amendment Right To Counsel, John P. Gross

Washington and Lee Law Review

No abstract provided.

Criminal Defense Lawyer Moneyball: A Demonstration Project, Ronald F. Wright, Ralph A. Peeples

Washington and Lee Law Review

No abstract provided.