Constitutional Law Commons^™

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

All Faculty Scholarship

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

An Unlikely Feminist Icon?: Justice Harry A. Blackmun's Continuing Influence On Reproductive Rights Jurisprudence, Sarah Primrose

Cardozo Journal of Equal Rights & Social Justice

The article examines Justice Harry Blackmun's pivotal role in the landmark *Roe v. Wade* decision, which legalized abortion in the United States and significantly advanced women's reproductive rights. Despite his initial reluctance to take on the case, Blackmun's opinion established a woman's right to privacy under the Fourteenth Amendment, balancing this right against state interests. The decision has had profound and enduring implications for women's autonomy and equality, though it has also faced persistent challenges and critiques, including concerns about its constitutional basis and the arbitrariness of the trimester framework. The article highlights Blackmun's personal background and jurisprudential approach, emphasizing …

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.

Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert

Articles

Comment in response to Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L. Rev. 1009 (2013).

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Faculty Publications

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Akron Law Faculty Publications

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

A Reasonable Doubt About "Reasonable Doubt", Miller W. Shealy Jr.

Oklahoma Law Review

The Supreme Court has failed to define the concept of “reasonable doubt” with any precision. The Court tolerates conflicting definitions of “reasonable doubt.” It permits some jurisdictions to forbid any definition of “reasonable doubt,” while giving others wide latitude to define the concept in ways that are contradictory. If the Court truly regards the “proof beyond a reasonable doubt” standard to be an “ancient and honored aspect of our criminal justice system,”1 a “bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law,’”2 then the Court cannot continue to tolerate the current …

Walking The Executive Speech Tightrope: From Starbucks To Chick-Fil-A, Loren F. Selznick

Oklahoma Law Review

No abstract provided.

Access To Government Information Is A Foundation Of American Democracy—But The Courts Don't Get It, Frederick A. O. Schwarz Jr.

Oklahoma Law Review

No abstract provided.

A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman

Faculty Publications

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil rights leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and …

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

Faculty Publications

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian

Scholarship@WashULaw

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard

Osgoode Hall Law Journal

This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates …

Social Justice And The Charter: Comparison And Choice, Margot Young

Osgoode Hall Law Journal

At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced …

Response: Commandeering Information (And Informing The Commandeered), Anthony Johnstone

Faculty Law Review Articles

This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos's first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution.

If Skilling Can't Get A Change Of Venue, Who Can? Salvaging Common Law Implied Bias Principles From The Wreckage Of The Constitutional Pretrial Publicity Standard, Jordan Gross

Faculty Law Review Articles

Fifty years ago, the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s right to an impartial jury that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with …

The Rule Of Law, Constitutional Reform, And The Death Penalty In The Gambia, Andrew Novak

Richmond Journal of Global Law & Business

No abstract provided.

Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret

Richmond Journal of Global Law & Business

No abstract provided.