Constitutional Law Commons^™

Chief Justice Roberts And The Changing Conservative Legal Movement, Joel Alicea

Scholarly Articles

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …

Public Discourse, Expert Knowledge, And The Press, Joseph Blocher

Faculty Scholarship

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse …

Raise Your Glass: The Third Circuit Holds New Jersey Wine Laws In Violation Of The Dormant Commerce Clause And Leaves Room For A Future Challenge Of The Direct Shipment Ban, James J. Williamson Ii

Villanova Law Review (1956 - )

The article presents information on the Commerce Clause of the U.S. Constitution and the prevention of the state from engaging in economic protectionism. The ratification of alcohol law, the regulation of shipment of alcohol and the harmonization of the dueling provisions are discussed with reference to the trial of Granholm v. Heald. The wine law challenges and the possible remedies available for the New Jersey wineries are also discussed.

Navigating The Second Amendment Crossfire: The Third Circuit Triggers Working Methodology In United States V. Marzzarella And United States V. Barton, Katherine L. Judkins

Villanova Law Review (1956 - )

No abstract provided.

Applying Federal Constitutional Theory To The Interpretation Of State Constitutions: The Ban On Special Laws In Maryland, Dan Friedman

Maryland Law Review

No abstract provided.

The Constitutional Inevitability Of Same-Sex Marriage, Laurence H. Tribe

Maryland Law Review

No abstract provided.

How I Lost My Constitutional Faith, Sanford Levinson

Maryland Law Review

No abstract provided.

Respect And Contempt In Constitutional Law, Or, Is Jack Balkin Heartbreaking?, Andrew Koppelman

Maryland Law Review

No abstract provided.

The Distribution Of Political Faith, Jack M. Balkin

Maryland Law Review

No abstract provided.

Recusal, Government Ethics, And Superannuated Constitutional Theory, Keith Swisher

Maryland Law Review

No abstract provided.

United States V. White: Further Unbalancing The Judicial Analysis Of Forcible Medication Of Defendants Found Incompetent To Stand Trial, Cynthia Polasko

Maryland Law Review

No abstract provided.

Local, Global And Plural Constitutionalism: Europe Meets The World., Daniel Halberstam

Book Chapters

The idea that constitutionalism is central to the legitimate exercise of public power has dominated the modern liberal imagination since the Enlightenment. The ideal of limited collective self-governance has spawned a rich and highly diverse tradition of hard-fought national constitutions from the time of the Glorious Revolution into the present. Today, however, constitutionalism faces its greatest challenge yet: the question of its continued relevance to modern governance. With the explosion of governance beyond the state, many wonder whether constitutionalism as we know it is being marginalized or altogether undermined.

Sexing Harris: The Law And Politics Of Defunding Planned Parenthood, Mary Ziegler

Scholarly Publications

The movement to defund Planned Parenthood has opened a new front in the abortion wars. At the state and national level, anti-abortion organizations have campaigned successfully for new legal limitations on Medicaid or Title X reimbursement for Planned Parenthood. Significantly, legal restrictions reach not only abortion but also other services like contraception and cancer screenings. North Carolina, Wisconsin, and Indiana are among the states to have introduced such bans, and the U.S. House of Representatives approved one before the proposal died in the Senate in April 2011.

At first, the novelty of the movement seems to lie in its open …

California And The Future Of Partial Match Dna Investigations, Jenny Choi

UC Law Constitutional Quarterly

Though DNA testing has been successfuly used in the United States since the 1980s, many high profile prosecutions have thrust this forensic tool into general acceptance as well as the public consciousness. In 2008, California broke new forensic ground, authorizing "partial match" DNA testing to augment the arsenal of law enforcement tools. This proactive technique has yielded substantial results, but has also opened the door to criticism.

This Note analyzes the history of DNA testing in California and nationally, including the progression towards partial match testing. This Note also considers constitutional, social, and policy concerns raised by the use of …

Mutual Fund Sales Notice Fees: Are A Handful Of States Unconstitutionally Exacting $200 Million Each Year, David M. Geffen

UC Law Constitutional Quarterly

This article examines the constitutionality of notice filing fees in six states. Although almost every state requires such fees to be paid by mutual funds, six of these states require fees that are highly disproportional to the amount of shares traded within their states. The filing fees in these states, accounting for 50 percent of the total paid nationwide, are considered as either "regulatory fees" or state taxes.

Regardless of whether these fees are categorized as regulatory fees or state taxes, they are unconstitutional under either the Due Process Clause or Commerce Clause of the Constitution. Not only would these …

Balancing Privacy, Autonomy, And Scientific Needs In Electronic Health Records Research, Sharona Hoffman, Andy Podgurski

Faculty Publications

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces.

This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It …

What Is The Meaning Of Health? Constitutional Implications Of Defining 'Medical Necessity' And 'Essential Health Benefits' Under The Affordable Care Act, B. Jessie Hill

Faculty Publications

One consequence of the Affordable Care Act (ACA) is that government will come to play a more extensive role in healthcare decision-making by individuals and their providers. The ACA does not directly regulate access to health services, but by means of a system of funding, mandates, and penalties, it essentially requires many employers to provide, and most individuals to carry, a certain minimum level of health insurance. Governmental decisions about which medical services qualify as medically necessary and appropriate may take on a new and greater importance, because government officials will be required to decide what sorts of procedures must …

Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin

Faculty Publications

Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.