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Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells 2012 University of Missouri School of Law

Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells

Faculty Publications

This essay responds to Professor Fenster’s article in the Iowa Law Review, Disclosure’s Effects: WikiLeaks and Transparency, assessing the effects of the recent WikiLeaks disclosures. The essay agrees with many of Professor Fenster’s conclusions regarding the promise and peril of those disclosures, especially his concern regarding the problematic balancing approaches used to assess the likely impact when confidential information is revealed. It specifically elaborates on courts’ current application of the Espionage Act, a criminal law likely to be applied to the WikiLeaks disclosures, and the implications of that deferential application for WikiLeaks, Julian Assange and journalists in general.


The Constitution Of Cádiz In Florida, M C. Mirow 2012 Florida International University College of Law

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …


Justice John Paul Stevens, Originalist, Diane Marie Amann 2012 University of Georgia School of Law

Justice John Paul Stevens, Originalist, Diane Marie Amann

Scholarly Works

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind …


Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman 2012 FIU College of Law

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Faculty Publications

No abstract provided.


Hosanna-Tabor, Religious Freedom, And The Constitutional Structure, Richard W. Garnett, John M. Robinson 2012 Notre Dame Law School

Hosanna-Tabor, Religious Freedom, And The Constitutional Structure, Richard W. Garnett, John M. Robinson

Journal Articles

From the Introduction

Our Constitution, which is both an act and artifact of "We the People of the United States," "vest[s]" certain "powers" - some, but not all - in the national government. Those powers are enumerated, and also separated, checked, and constrained. As Chief Justice John Roberts put it last June, this government "possesses only limited powers; the States and the people retain the remainder." It is designed and structured in such a way as to make it workable, capable, and effective, but also to - by virtue of its design and structure, and not only through explicit prohibitions …


Symposium - Constitutional Redemption & Constitutional Faith - Introduction, 2012 University of Maryland Francis King Carey School of Law

Symposium - Constitutional Redemption & Constitutional Faith - Introduction

Maryland Law Review

No abstract provided.


Fourteenth Amendment Originalism, Jamal Greene 2012 University of Maryland Francis King Carey School of Law

Fourteenth Amendment Originalism, Jamal Greene

Maryland Law Review

No abstract provided.


Freedom Struggles And The Limits Of Constitutional Continuity, Aziz Rana 2012 University of Maryland Francis King Carey School of Law

Freedom Struggles And The Limits Of Constitutional Continuity, Aziz Rana

Maryland Law Review

No abstract provided.


The Constitutional Imaginary: Just Stories About We The People, Gerald Torres, Lani Guinier 2012 University of Maryland Francis King Carey School of Law

The Constitutional Imaginary: Just Stories About We The People, Gerald Torres, Lani Guinier

Maryland Law Review

No abstract provided.


Redeeming And Living With Evil, Mark A. Graber 2012 University of Maryland Francis King Carey School of Law

Redeeming And Living With Evil, Mark A. Graber

Maryland Law Review

No abstract provided.


Davis V. United States: Good Faith, Retroactivity, And The Loss Of Principle, David McAloon 2012 University of Maryland Francis King Carey School of Law

Davis V. United States: Good Faith, Retroactivity, And The Loss Of Principle, David Mcaloon

Maryland Law Review

No abstract provided.


Factions For The Rest Of Us, John D. Inazu 2012 Washington University in St. Louis School of Law

Factions For The Rest Of Us, John D. Inazu

Scholarship@WashULaw

This essay responds to essays by Professors Ashutosh Bhagwat, Susan Appleton, and Robert Vischer on my book Liberty’s Refuge: The Forgotten Freedom of Assembly. The essays were presented at a March 2012 discussion hosted by Washington University School of Law that included additional presentations from Gregory Magarian, Bernadette Meyler, Ian MacMullen, and Neil Richards.

I had three objectives in writing Liberty’s Refuge, one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. …


Liberty's Refuge: The Forgotten Freedom Of Assembly, John D. Inazu 2012 Washington University in St. Louis School of Law

Liberty's Refuge: The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women's suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions …


Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. McMunigal 2012 Washington University in St. Louis School of Law

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

Scholarship@WashULaw

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.


Abbott V. Abbott: Reviving Good Faith And Rejecting Ambiguity In Treaty Jurisprudence, Molly K. Madden 2012 University of Maryland Francis King Carey School of Law

Abbott V. Abbott: Reviving Good Faith And Rejecting Ambiguity In Treaty Jurisprudence, Molly K. Madden

Maryland Law Review

No abstract provided.


Michigan V. Bryant: Returning To An Open-Ended Confrontation Clause Analysis, Shari H. Silver 2012 University of Maryland Francis King Carey School of Law

Michigan V. Bryant: Returning To An Open-Ended Confrontation Clause Analysis, Shari H. Silver

Maryland Law Review

No abstract provided.


Portrait Of A Judge: Judith S. Kaye, Dichotomies, And State Constitutional Law, Susan Herman 2012 Brooklyn Law School

Portrait Of A Judge: Judith S. Kaye, Dichotomies, And State Constitutional Law, Susan Herman

Faculty Scholarship

No abstract provided.


The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar 2012 St. John's University School of Law

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …


Obligatory Health, Noa Ben-Asher 2012 St. John's University School of Law

Obligatory Health, Noa Ben-Asher

Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …


Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder 2012 St. John's University School of Law

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …


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