Constitutional Law Commons^™

The Legal And Policy Implications Of The Possibility Of Palestinian Statehood, Winston P. Nagan, Aitza M. Haddad

UF Law Faculty Publications

This paper reviews the history of the claims to statehood and sovereignty of the Palestinian people, from the period of the League of Nations mandate to the current move to secure UN approval of a Palestinian State. The article examines the claims to statehood in international law and examines the problem in the broader context of claims about human rights and humanitarian violations, the Israeli claims to security and legitimacy and the US claims for its mediation goal to ensure that the problem does not descend into a legal vacuum in which the fundamental interests of all parties in security …

The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur

UF Law Faculty Publications

The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers …

Changing Burma From Without: Political Activism Among The Burmese Diaspora, David C. Williams

Indiana Journal of Global Legal Studies

This Article examines the role that the Burmese diaspora plays from afar in influencing reform inside the country. It offers a brief history of the crisis in Burma as background for identifying the various elements of the diaspora: those on the run from the military; those in camps for internally displaced persons and refugees; migrant workers; leaders of the democracy movement active on Burma's borders; asylees; and professional activists with influence on the international community. The different groups use the different strategies available to them. The leadership on the borders is helping to lead the democracy movement inside the country; …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas

Faculty Publications By Year

The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will …

Anti-Evasion Doctrines In Constitutional Law, Michael B. Kent Jr., Brannon P. Denning

Scholarly Works

Recent constitutional scholarship has focused on how courts - the Supreme Court in particular - "implement" constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the "constitutional operative proposition," but must then design "decision rules" that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. …

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Northwestern Journal of Law & Social Policy

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

The Reach Of The Schoolhouse Gate: The Fate Of Tinker In The Age Of Digital Social Media, Mickey Lee Jett

Catholic University Law Review

No abstract provided.

Shelby County V. Holder And The Voting Rights Act: Getting The Right Answer With The Wrong Standard, Michael James Burns

Catholic University Law Review

No abstract provided.

The Speech Act Defends The First Amendment: A Visible And Targeted Response To Libel Tourism, Marissa Gerny

Student Works

No abstract provided.

The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

Representing Injustice: Justice As An Icon Of Woman Suffrage, Kristin Collins

Faculty Scholarship

In this Essay, written as part of a symposium on Judith Resnik’s and Dennis Curtis's sumptuously illustrated volume Representing Justice, I offer a historically sensitive interpretation of the figure of Justice in woman suffrage spectacle and propaganda. American suffragists were drawn to Justice as a symbol of women's claim to political and legal rights. Why? Surely one reason is that, as Resnik and Curtis demonstrate, by the early twentieth century Justice had ascended as a distinctively resonant symbol of law and law's legitimacy in a democratic polity. Precisely because Justice was a legible symbol of law's legitimacy, she was ripe …

The Balkinization Of Originalism, James E. Fleming

Faculty Scholarship

This Article suggests that, with the publication of Jack Balkin's Living Originalism, we are witnessing the "Balkanization" of originalism (when originalism splits into warring camps) along with the "Balkinization" of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin's living originalism is what Ronald Dworkin has called a "moral reading" of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin's commitment to interpret the Constitution so as to …

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

Articles

No abstract provided.

Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims Facility, Myriam E. Gilles

Articles

No abstract provided.

Pleading As Information-Forcing, Alexander Reinert

Articles

Academics, judges, and practitioners have devoted much attention to the potential impact of the federal pleading standards announced in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Many have criticized Iqbal and Twombly on procedural, substantive, and policy grounds. And although most everyone agrees that the cases mark a break with past liberal pleading rules and have changed pleading practice, there is little agreement about precisely how the cases have affected ultimate outcomes. Indeed, there is much confusion about what exactly the new rules require of a pleader.

In this Article, …

Resuscitating Roberts - How Courts Should Construe The Emergency Exception To The Sixth Amendment's Confrontation Clause, Sloan A. Heffron

UC Law Constitutional Quarterly

This paper argues that in the wake of Crawford, Davis, and Bryant, trial courts need a workable definition of "ongoing emergency," as well as a test that can be applied in assessing the admissibility of statements made under such circumstances. The paper first offers a definition for "ongoing emergency". It then offers a totality-of-the-circumstances test that can be applied in determining if a declarant's statement occurs during the course of an ongoing emergency.

Making A Mountain Out Of A Molehill - Marbury And The Construction Of The Constitutional Canon, Keith E. Whittington, Amanda Rinderle

UC Law Constitutional Quarterly

This article challenges the notion that Marbury v. Madison was a critical case immediately after the Supreme Court issued its decision in 1803. The article performs an empirical analysis of the quantity and quality of citations invoking Marbury over the years to determine its importance and impact at various points in American history. Additionally, the article looks at how the case has been, and continues to be used by courts.

Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens Of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, And Justice Becomes Legally Blind, Angela A. Allen-Bell

UC Law Constitutional Quarterly

Solitary confinement is a tool used by the American prison system without a sufficient check on its application. Current practice provides that an inmate's solitary confinement is reviewed at regular intervals by Executive-branch prison administrators. They have employed it to enforce discipline and order in the prison population, but simultaneously have ridden roughshod over inmates' substantive due process rights by failing to provide a meaningful opportunity for a hearing of the facts and justifications for the continued and prolonged solitary confinement of prison inmates. Many, too many inmates have been kept in solitary confinement for extended periods-some for decades-without any …

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

UC Law Constitutional Quarterly

In DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court definitively terminated the possibilities of taxpayer standing previously opened by the Warren Court in Flast v. Cohen.

under the U.S. Constitution governing state taxes and outlays. This body of constitutional law will be beyond the direct review of the U.S. Supreme Court because that Court has rejected state taxpayer standing in the federal courts.

State court judges will be more inclined than their federal counterparts to uphold state tax and expenditure policies against constitutional challenge. Consequently, these state-friendly cases under the U.S. Constitution, …