Constitutional Law Commons^™

To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Law & Economics Working Papers

In Citizens United vs. FEC, the Supreme Court struck down a Federal ban on direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. The thesis of this Article is that by viewing Citizens United through the prism of theories about the corporate form, it is possible to understand why both the majority and the dissent departed from previous Supreme Court cases on the First Amendment rights of corporations, and to …

Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong

American University Law Review

Jurisprudential remedies for racial discrimination presume the existence of clear categories. Indeed, Carolene Products’ classic allusion to “discrete and insular minorities” evokes racial groups that are readily identified and defined. Yet this reliance on categories renders antidiscrimination jurisprudence inhospitable to claims brought by individuals identified as multiracial and discriminated against on that basis. By addressing racial discrimination exclusively through categories, courts have lost sight of the fact that the purpose of antidiscrimination law is not to protect individuals from discrimination based on membership in recognized categories, but rather to protect individuals from the harms inflicted by racism.

This Article explores …

Freedom Of Speech In School And Prison, Aaron H. Caplan

Washington Law Review

Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary’s belief …

Thirteen Ways Of Looking At Buck V. Bell: Thoughts Occasioned By Paul Lombardo's "Three Generations, No Imbeciles", Michelle Oberman

Faculty Publications

Paul Lombardo's recent book, Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell, chronicles the history of state-sponsored sterilization over the course of the 20th century. As a historical endeavor, it is rich and rewarding, permitting the reader a broad understanding of the social, cultural and legal context for the case that inspired Oliver Wendell Holmes' famous quotation, "Three generations of imbeciles are enough." Lombardo's work masterfully ties the eugenics movement of the early 20th century to the broader policies informing the government's role in regulating reproduction .

Lombardo's book, which I originally picked up solely …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Cornell Law Faculty Publications

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

Gender Autonomy, Transgender Identity And Substantive Due Process: Finding A Rational Basis For Lawrence V. Texas, Jillian T. Weiss

Journal of Race, Gender, and Ethnicity

No abstract provided.

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

Scholarly Works

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its first …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Michigan Law Review

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

January 31, 2010: The Invention Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Invention of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 29, 2010: Pascal Boyer’S Explanation Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pascal Boyer’s Explanation of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 28, 2010: What Secular Life Will Look Like, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Secular Life Will Look Like“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

United States V. Comstock: Justifying The Civil Commitment Of Sexually Dangerous Offenders, Halerie Mahan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

January 25, 2010: What About Pedro?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What About Pedro?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 23, 2010: Thoughts On Citizens United, The Supreme Court Corporate Speech Case, Bruce Ledewitz

Hallowed Secularism

Blog post, “Thoughts on Citizens United, the Supreme Court Corporate Speech Case“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Jaunary 21, 2010: What’S Religion Got To Do With It?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What’s religion got to do with it?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 19, 2010: Dances With Wolves Meets The Matrix, Bruce Ledewitz

Hallowed Secularism

Blog post, “Dances with Wolves Meets The Matrix“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 17, 2010: Edward Schillebeeckx, 1914-2009, Bruce Ledewitz

Hallowed Secularism

Blog post, “Edward Schillebeeckx, 1914-2009“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 14, 2010: Can Science Explain Religion?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Can Science Explain Religion?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses Imbler’s adoption of absolute immunity for prosecutors. Part II discusses Imbler’s extension of absolute immunity to a prosecutor’s violation of his disclosure duty under Brady v. Maryland. Part III describes the ease with which prosecutors are able to evade the Brady rule and the difficulty of enforcing compliance with Brady. Part IV discusses the absence of any meaningful sanctions to deter and punish prosecutors for willful violations of Brady. Part V proposes a bad faith exception to absolute immunity of prosecutors for Brady violations.