Constitutional Law Commons^™

Constitutionalising An Overlapping Consensus: The Ecj And The Emergence Of A Coordinate Constitutional Order, Charles F. Sabel, Oliver H. Gerstenberg

Faculty Scholarship

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member …

Profiling And Consent: Stops, Searches And Seizures After Soto, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

Following Soto v State (1999), New Jersey was among the first states to enter into a comprehensive Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New …

The Treatment Of Isolationist Minorities, Gabriel Rauterberg

Faculty Scholarship

This Note examines what may be the most radical challenge posed by religious subcultures to the liberal politics of modern industrial nations – that of isolationist, nonliberal ( or even illiberal) religious minorities. These subcultures do not seek to integrate with mainstream society or gain power within it, but to withdraw in order to maintain norms widely discrepant from those that are socially dominant. They often seek to place restrictions upon their own members' freedom or activities, in part to maintain the group's differences from the greater society. These cultures, characterized by features as distinctive as collective property ownership, pacificism, …

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalists fear that our constitutional culture is becoming less popular. At the same time, these scholars often ignore key popular sources of constitutional meaning. Their accounts focus,  instead, on the elite conflicts that give rise to constitutional change, particularly the ongoing debates between elected officials, movement leaders, and the Supreme Court. Although these studies are essential to understanding the pathways for promoting non-Article V constitutional change, they are "popular" only in the sense that they focus on non-judicial actors and politically salient controversies. The constitutional life of the average citizen is generally ignored. If legal scholars are serious about …

Blackstone's Ninth Amendment: A Historical Common Law Baseline For The Interpretation Of Unenumerated Rights, Jeffrey D. Jackson

Oklahoma Law Review

No abstract provided.

The Latest Phase Of Negro Disfranchisement [1912 Reprint From The Harvard Law Review], Julien C. Monnet

Oklahoma Law Review

No abstract provided.

Essay: Curing A Monumental Error: The Presumptive Unconstitutionality Of Ten Commandment Displays, Peter Irons

Oklahoma Law Review

No abstract provided.

Essay: Religious Displays And The Voluntary Approach To Church And State, Thomas Berg

Oklahoma Law Review

No abstract provided.

Panel Discussion

Oklahoma Law Review

No abstract provided.

Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld

Articles

Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …

The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel

Faculty Publications

No abstract provided.

Of Squares And Uncouth Twenty-Eight-Sided Figures: Reflections On Gomilion And Lighfoot After Half A Century, Jonathan L. Entin

Faculty Publications

This essay, part of a symposium on political powerlessness and constitutional interpretation, focuses on Gomillion v. Lightfoot, which rejected an attempt to remove virtually every African American registered voter from the city limits of Tuskegee, Alabama. The paper examines why and how the case arose in a community with an unusually large and independent black middle class that had long placed high priority on voting rights as well as the impact of the ruling not only on political life in Tuskegee but also on the ruling in Baker v. Carr that launched the reapportionment of legislative bodies around the nation. …

Governing Gambling In The United States, Maria E. Garcia

CMC Senior Theses

The role risk taking has played in American history has helped shape current legislation concerning gambling. This thesis attempts to explain the discrepancies in legislation regarding distinct forms of gambling. While casinos are heavily regulated by state and federal laws, most statutes dealing with lotteries strive to regulate the activities of other parties instead of those of the lottery institutions. Incidentally, lotteries are the only form of gambling completely managed by the government. It can be inferred that the United States government is more concerned with people exploiting gambling than with the actual practice of wagering.

In an effort to …

The Legal Arizona Workers Act And Preemption Doctrine, Sandra J. Durkin

Michigan Journal of Race and Law

in recent years, a spate of states passed laws regulating the employment of undocumented immigrants. This Note argues that laws that impose civil sanctions on employers that hire undocumented immigrants are preempted by both federal immigration law and federal labor law. The Note focuses specifically on the Legal Arizona Workers Act because it went into effect in 2008 and has amassed more than two years' worth of data on its enforcement, and because it is touted as the harshest state anti-immigration measure to date. This Note examines the law's impacts and argues that practitioners nationwide should challenge the Legal Arizona …

Taxpayer Standing From Flast To Hein, Carl H. Esbeck

Faculty Publications

This essay plays off a critique by Professor Maya Manian of an article where I discussed the decision in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007) (plurality opinion). While Professor Manian was concerned about how the result in Hein would lead to under enforcement of church-state separation, my article had utilized Hein, and more generally the law of taxpayer standing beginning with Flast v. Cohen (1968), to look beyond the question of aid to religion. Rather, I began by showing that the only cases in which the Court had announced a “generalized grievance” and thereby denied …

On Silence: A Reply To Professors Cribari And Judges, Ted Sampsell-Jones

Faculty Scholarship

In 2009, the author wrote an article on the Self-Incrimination Clause. In response to this article, Professors Cribari and Judges wrote a Response suggesting that the author was an abolitionist of the Self-Incrimination Clause. This article is intended to clarify the author's position on the Self-Incrimination Clause and on Griffin v. California. The article begins by explaining the purposes of the Self-Incrimination Clause and highlighting the differences between the right to testify and the right to remain silent. It then analyzes the "test the prosecution" reasoning for the Griffin rule, pointing out its shortcomings and lack of Constitutional basis. The …

Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones

Faculty Scholarship

A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and …

When U.S. Supreme Court Decisions Are Not Final: An Examination Of The Rehearing Rule And The Court’S Application Of It In Kennedy V. Louisiana, Brian De Vito

Student Works

No abstract provided.

A Duty To Serve?: Assessing The Application Of Religious Exemptions For Marriage Officiants In Same-Sex Marriage Laws With Lessons Learned From The Reproductive Rights World, Christina Coiro

Student Works

No abstract provided.