Constitutional Law Commons^™

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking …

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

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 …

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 …

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert

Articles

Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …

The False Modesty Of Department Of Revenue V. Davis: Disrupting The Dormant Commerce Clause Through The Traditional Public Function Doctrine, Edward A. Zelinsky

Articles

No abstract provided.

Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton

Articles

No abstract provided.