Constitutional Law Commons^™

Back To The Future (Reviewing David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011)), William D. Araiza

Faculty Scholarship

No abstract provided.

The Erosion Of Federal Common Law: Anticipatory Delegation In American Electric Power Company V. Connecticut, Paul Winters

Buffalo Environmental Law Journal

Eleven plaintiffs brought a common law action, seeking injunctive relief against the six largest American producers of greenhouse gases. Because the EPA had not yet promulgated regulations governing the production of greenhouse gases, the Second Circuit Court of Appeals held that federal law had not displaced plaintiffs ' common law claim. The Supreme Court reversed, holding that even though regulations had not been promulgated, EPA occupied the field nevertheless. The decision marks an extension of the regulatory displacement of federal common law to regulations that are merely anticipated Such extension, or "anticipatory delegation, " represents an unacceptably large incursion into …

Dueling Values: The Clash Of Cyber Suicide Speech And The First Amendment, Thea E. Potanos

Chicago-Kent Law Review

On March 15, 2011, William Melchert-Dinkel, a Minnesota nurse, was convicted of two counts of assisted suicide, based solely on things he said in emails and online chat rooms. This note examines whether cyber speech encouraging suicide, such as Melchert-Dinkel's, should be protected by the First Amendment. States have compelling interests in preserving life, preventing suicide, and protecting vulnerable persons from abuse, and the majority of them have assisted suicide statutes that could be applied to cyber-suicide speech. However, because cyber- suicide speech does not fit neatly into recognized categories of "low-value" or unprotected speech, punishment may be foreclosed by …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Policing School Discipline, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Theorizing American Freedom (Reviewing Aziz Rana, The Two Faces Of American Freedom (2010)), Anthony O'Rourke

Book Reviews

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion and …

Book Review, Back To The Future, William Araiza

Faculty Scholarship

No abstract provided.

Unlocking The Courthouse Door: Removing The Barrier Of The Plra’S Physical Injury Requirement To Permit Meaningful Judicial Oversight Of Abuses In Supermax Prisons And Isolation Units, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In recent years the number of inmates held in isolation in American prisons has increased dramatically. At the same serious abuses have occurred in these isolation units. These abuses, which include subjecting inmates to degrading, humiliating and unnecessary suffering, often do not cause physical injury. Even though constitutional rights are violated by these acts, federal courts have often failed to provide relief to victims of these abuses. The reason is that the Prison Litigation Reform Act (PLRA) deprives federal courts of the ability to provide relief from degrading and even torturous behavior if there is not physical injury. This article …

The Slow Wheels Of Furman's Machinery Of Death, Brent E. Newton

The Journal of Appellate Practice and Process

No abstract provided.

A Sober Second Thought, Andrew H. Schapiro

The Journal of Appellate Practice and Process

No abstract provided.

Beyond Citizens United, John Paul Stevens

The Journal of Appellate Practice and Process

No abstract provided.

Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott

Indiana Law Journal

The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem cell research.

What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas.

But, as some scholars have shown, a version of narrow standing helped liberals protect New Deal legislation in the …

Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendment, Nat Stern

Scholarly Publications

No abstract provided.

A (Modest) Separation Of Powers Success Story, Tara Leigh Grove

Faculty Publications

No abstract provided.

"They Saw A Protest": Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

Our Federalism(S), Heather K. Gerken

William & Mary Law Review

No abstract provided.

The Effects Of Tribal Governments On Reservation Poverty Rates, Heather Raisch

Political Science Theses and Capstones

Poverty rates on Indian reservations are far higher than the national average. Since Tribal Governments have at least some control over these reservations, to what extent are they to blame for these higher than average poverty rates? I look at each reservation and their type of government, constitution, policies and demographics to analyze the causes of their poverty as it relates to tribal government. There are many other pieces of research that are similar to this, but none looking specifically at the overall effects the government has on its community. My hypothesis is that communities with higher poverty rates tend …

Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal

Dalhousie Law Journal

"Whistleblowing" is the act or process of alerting others to scandal, danger, malpractice, corruption or other wrongdoing. In this article, the authors assert that a strongly developed freedom of conscience, distinct from freedom of religion. could contribute to the development of socially-valuable whistleblowing. While conscience is often treated as inseparable from religion, the authors suggest that the deliberate inclusion of "conscience" in s. 2(a) of the Charter implies that "conscience" ought to be recognized as an independent and robust freedom. This then provides the framework for accepting and recognizing the importance of whistleblowing and lessening its socialstigma. The article presents …

Undoing Historical Wrongs: Law And Indigeneity In India, Pooja Parmar

Osgoode Hall Law Journal

Beginning with a close look at a recent call by the Supreme Court of India to undo the historical injustices done to the "original inhabitants" of the country, this paper examines similar calls for justice made by Jaipal Singh Munda, the most vocal representative of Adivasis in the Constituent Assembly of India between December 1946 and January 1950, when both the possibilities and limitations of addressing past injustices were being written into the Constitution of India. While drawing attention to debates and disagreements over righting certain past wrongs that remain largely absent from historical accounts of the Constitution's drafting, this …

Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak

Michigan Law Review

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …