Constitutional Law Commons^™

Proposed Exactions, Timothy M. Mulvaney

Faculty Scholarship

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …

Attorney Advice And The First Amendment, Renee Newman Knake

Washington and Lee Law Review

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment …

The Church Amendment: In Search Of Enforcement, Nathaniel James

Washington and Lee Law Review

No abstract provided.

Joe The Ploughman Reads The Constitution, Or, The Poverty Of Public Meaning Originalism, Jack N. Rakove

San Diego Law Review

Originalism is hot. A couple of decades ago, one might have thought that its death knell had sounded when the Supreme Court nomination of Robert Bork failed in the Senate. Although one wondered exactly what kind of originalism Justice Bork might have performed in practice, he was regarded as the theory's leading academic spokesman, and the defeat of his nomination might have served as a fatal blow to the cause. Within a few years, however, Justice Antonin Scalia published his lecture Originalism: The Lesser Evil, signaling that the cause remained alive and well. Although Justice Scalia's views of the practice …

Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Faculty Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own …

Recognition: A Case Study On The Original Understanding Of Executive Power, Robert J. Reinstein

University of Richmond Law Review

No abstract provided.

Ignoring Purpose, Context, And History: The Tenth Circuit Court In American Atheists, Inc. V. Duncan, Steven Michael Lau

BYU Law Review

No abstract provided.

Such Visible Fiction: The Expansion Of Scott V. Harris To Prisoner Eighth Amendment Excessive Force Claims, Nina Frank

Cardozo Law Review

No abstract provided.

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

William & Mary Bill of Rights Journal

No abstract provided.

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan

Working Paper Series

Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no …

The Impact Of The Thirteenth Amendment On The Common Law, David S. Bogen

Schmooze 'tickets'

No abstract provided.

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Schmooze 'tickets'

No abstract provided.

The Thirteenth Amendment, Interest Convergence, And The Badges And Incidents Of Slavery, William M. Carter Jr.

Schmooze 'tickets'

This article explores the gap between the Thirteenth Amendment's promise and its implementation.

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States , Linda C. Mcclain

Schmooze 'tickets'

No abstract provided.

Why Originalism Is Of So Little Use In Interpreting The Thirteenth Amendment, Henry L. Chambers

Schmooze 'tickets'

The 13th Amendment affords two very different visions. One vision limits the 13th Amendment’s scope to ending slavery and involuntary servitude without more. The second expands the 13th Amendment’s scope to include an anti-subordination principle. Proponents of both visions rely on originalism to support their visions. Unfortunately, originalism does not help us reach a clearly correct conclusion regarding the scope of the 13th Amendment.

That is fine, because the core question regarding the interpretation of the 13th Amendment ought to be whether the amendment is constitutionally transformative. That is, does the 13th Amendment announce a constitutional principle that requires that …

Getting Right Without Lincoln, Daniel W. Hamilton

Schmooze 'tickets'

This short piece is taken from a review of the three important books considered below. This review is part of my current exploration of the historiography of slavery and the Constitution in Civil War legal history.

Brian McGinty, Lincoln and the Court; Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War; Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s Frontier

The Slavery And Involuntary Servitude Of Immigrant Workers: Two Sides Of The Same Coin, Maria L. Ontiveros

Schmooze 'tickets'

No abstract provided.

[Features Of Conventional Scholarly Wisdom About The Thirteenth Amendment], Pamela Brandwein

Schmooze 'tickets'

No abstract provided.

Liberalism, The Thirteenth Amendment, And The Seeds Of Destruction Of Reconstruction, Leslie F. Goldstein

Schmooze 'tickets'

No abstract provided.