Constitutional Law Commons^™

Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Schuelke Report about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution to my knowledge has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded, and the prosecution’s theory of guilt unraveled, the prosecutors became indifferent whether the defendant was really guilty; they just …

The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield

Elisabeth Haub School of Law Faculty Publications

This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely …

Doing Affirmative Action, Stephen Clowney

Michigan Law Review First Impressions

Sometime this year the Supreme Court will announce its holding in Fisher v. University of Texas at Austin, a case that asks whether colleges may continue to consider race when making admissions decisions. Most Court watchers predict that the five conservative justices will vote to curtail the use of racial preferences. Lost in the weighty discussions about the scope of the Equal Protection Clause and the meaning of the Civil Rights struggle is any clear and concise explanation of how selective colleges actually make admissions decisions and how they work to fulfill the goals of affirmative action. This Essay seeks …

The Limits Of New Originalism, Joel Alicea

Scholarly Articles

We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism's focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a …

Symposium Foreword: Privacy Rights And Proactive Investigations: Emerging Constitutional Issues In Law Enforcement, Thiru Vignarajah

University of Baltimore Law Review

No abstract provided.

The Virtue Of Obscurity, Colin Starger

All Faculty Scholarship

The critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational …

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Utah OnLaw: The Utah Law Review Online Supplement

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

No Promo Hetero: Children's Right To Be Queer, Clifford Rosky

Utah Law Faculty Scholarship

This Article argues that the government has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand. Building upon a familiar schema of legal scholarship on LGBT rights, this Article challenges the state’s interest in promoting heterosexuality by articulating a tripartite defense of children’s speech, status, and conduct. It argues that these three aspects of homosexuality are connected to and protected by three constitutional clauses — the First Amendment, …

Livelihood, Ability To Pay, And The Original Meaning Of The Excessive Fines Clause, Nicholas M. Mclean

UC Law Constitutional Quarterly

This article highlights the circuit split that has recently emerged regarding the Eighth Amendment's Excessive Fines Clause in the years since United States v. Bajakajian. The article introduces the traditional English legal principle of salvo contenemento and examines the role this principle played in informing the meaning of the excessive fines under English law. It then goes on to consider American colonial understandings of salvo contenemento, undertaking a brief survey of post-Founding considerations of the meaning of the phrase "excessive fines." The article studies the public meaning of the Excessive Fines Clause at the time of the Fourteenth Amendment's ratification …

A Check-In On Privacy After United States V. Jones: Current Fourth Amendment Jurisprudence In The Context Of Location-Based Applications And Services, Kathryn Nobuko Horwath

UC Law Constitutional Quarterly

This note will discuss whether current Fourth Amendment jurisprudence adequately protects user location information obtained from location-based services ("LBS"), and if not, what changes can be made to ensure our right to privacy in this digital information. In Part I, the concept of LBS and a technical description of how it works is discussed. Part II summarizes the Supreme Court's recent decision in United States v. Jones on warrantless prolonged use of a GPS tracking device and will outline the Fourth Amendment jurisprudence underpinning the Court's logic. Part III delivers an in-depth description of federal statutory law that applies to …

Public Disclosure And Moving The World Forward: Why We Need The America Invents Act, Arman Matevosyan

UC Law Constitutional Quarterly

This note discusses the shift in the United States from a first-to-invent scheme to a first-to-file regime in patents, as provided by the Leahy-Smith America Invents Act. It discusses the historical patent regime in the United States and abroad. It then the Leahy-Smith Act's provisions and the putative constitutional bases upon which the act was passed. Finally, the note argues that the Leahy-Smith Act, and its first-to-file regime, is in line with Supreme Court precedent, creates a better system, and conforms to international standards more closely than the previous first-to-invent regime.

Foreign In A Domestic Sense: American Samoa And The Last U.S. Nationals, Sean Morrison

UC Law Constitutional Quarterly

Citizenship is part of the foundation of being American. Yet the United States treats some of its own as second class citizens. Deep in the South Pacific, forgotten amidst the vast ocean and coconuts, is a small series of islands that represent the only U.S. jurisdiction below the equator. American Samoa remains the last American territory that does not recognize its inhabitants as citizens. For more than a century, American Samoans have fought American wars, pledged allegiance to the American flag, and played a significant amount of American football, yet are categorized as U.S. nationals rather than citizens.

Recently, some …

A Higher Protection For Scholars Faced With Defamation Suits, Ameet Kaur Nagra

UC Law Constitutional Quarterly

Defamation suits against scholars have rarely been successful in the United States because of First Amendment protections, but the prospect of spending a hefty sum to defend a defamation suit has a chilling effect on what scholars research or write. Compared to the publications of media giants, a defamation claim is more likely to inhibit scholarly ideas from scholars such as scientists, psychologists, economists, mathematicians, law professors, and book reviewers.

The U.S. Supreme Court has refused to significantly alter its defamation framework promulgated almost half a century ago. Lower courts have worked within this constitutional framework to protect scholars by …

A Constitutional "Inquiry" Into The Texas Racing Act: The Physical Presence Requirement For Wagering & The Dormant Commerce Clause, Amanda Stubblefield

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Advocacy And Association, John D. Inazu

Utah OnLaw: The Utah Law Review Online Supplement

The lawyer as advocate (who files briefs and delivers arguments) flows out of the lawyer as counselor (who listens to clients, shapes arguments, and forms relationships). In this sense, Professor Tarkington’s focus on attorney-client association mirrors the ways in which many groups function as the pre-political spaces in which ideas and relationships are formed in the first place. It is not enough for us to focus on the moment of expression (or the moment of advocacy) because we will never arrive at these moments without sufficient protection for the background circumstances in which they are crafted. That to me is …

Foreword: Executive Power: From The Constitutional Periphery To The Constitutional Core, Mark A. Graber

Maryland Law Review

No abstract provided.

Implications Of The President’S Appointment Power, Peter E. Quint

Maryland Law Review

No abstract provided.

Lincoln, The Emancipation Proclamation, And Executive Power, Henry L. Chambers Jr.

Maryland Law Review

No abstract provided.

Passive-Aggressive Executive Power, Corinna Barrett Lain

Maryland Law Review

No abstract provided.

The Court’S Decisive Hand Shapes The Executive’S Foreign Affairs Policymaking Power, Kimberley L. Fletcher

Maryland Law Review

No abstract provided.