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A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan 2019 University of Massachusetts School of Law - Dartmouth

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


Special Justifications, Randy J. Kozel 2019 Notre Dame Law School

Special Justifications, Randy J. Kozel

Randy J Kozel

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the ...


The Death Penalty As Incapacitation, Marah S. McLeod 2019 Selected Works

The Death Penalty As Incapacitation, Marah S. Mcleod

Marah McLeod

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman 2019 Notre Dame Law School

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Barry Cushman

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that ...


Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens 2019 Seattle University School of Law

Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and ...


The Constitutionality Of Affirmative Action: Views From The Supreme Court, Jesse H. Choper 2019 University of California, Berkeley

The Constitutionality Of Affirmative Action: Views From The Supreme Court, Jesse H. Choper

Jesse H Choper

No abstract provided.


Bill Lockhart--Colleague, Mentor, Friend, Jesse H. Choper 2019 Selected Works

Bill Lockhart--Colleague, Mentor, Friend, Jesse H. Choper

Jesse H Choper

No abstract provided.


Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper 2019 University of California, Berkeley

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Jesse H Choper

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the ...


Federalism And Judicial Review: An Update, Jesse H. Choper 2019 Selected Works

Federalism And Judicial Review: An Update, Jesse H. Choper

Jesse H Choper

This Commentary argues that the Court decided New York v. United States incorrectly. The Court failed to take into account both the highly pragmatic nature of federal-state questions and the extent to which state interests are represented in the national political process. The Court, instead, should have followed the author's "Federalism Proposal" whereby all issues of federalism arising under the Tenth Amendment are deemed non-justiciable and are left to the political branches for resolution. This Commentary illustrates the shortcomings of the New York approach in the context of national health care regulation.


The Rhetoric Of Constitutional Law, Erwin Chemerinsky 2019 University of Southern California Law School

The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric ...


Rationalizing The Abortion Debate: Legal Rhetoric And The Abortion Controversy, Erwin Chemerinsky 2019 DePaul University College of Law

Rationalizing The Abortion Debate: Legal Rhetoric And The Abortion Controversy, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


State Sovereignty And Federal Court Power: The Eleventh Amendment After Pennhurst V. Halderman, Erwin Chemerinsky 2019 Selected Works

State Sovereignty And Federal Court Power: The Eleventh Amendment After Pennhurst V. Halderman, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky 2019 Selected Works

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed ...


Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie 2019 Jones Day

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Erwin Chemerinsky

None available.


What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias, 2019 Selected Works

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the ...


False Speech And The First Amendment, Erwin Chemerinsky 2019 Selected Works

False Speech And The First Amendment, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Amending The Constitution, Erwen Chemerinsky 2019 University of Southern California Law School

Amending The Constitution, Erwen Chemerinsky

Erwin Chemerinsky

The ultimate measure of a constitution is how it balances entrenchment and change. On the one hand, a constitution differs from all other laws in that it is much more difficult to revise. For example, the next session of Congress can amend or repeal a statute, but altering the U.S. Constitution requires a complex process involving supermajorities of both houses of Congress and the states. A constitution thus reflects a desire to place a society's core values of governance - such as the structure of government and the rights of individuals - in a document that is hard to revise ...


Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin McCrary, Stephen Davidoff Solomon, Eric L. Talley 2019 Columbia Law School

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Richard M. Buxbaum

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their ...


Gun Rights Are Not Unlimited, Alan E. Garfield 2019 Widener Law

Gun Rights Are Not Unlimited, Alan E. Garfield

Alan E Garfield

No abstract provided.


Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin McCrary, Stephen Davidoff Solomon, Eric L. Talley 2019 Columbia Law School

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Robert Bartlett

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their ...


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