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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 ...


Panel #1: Maine Indians And The Maine State Constitution, John Dieffenbacher-Krall, James Francis, Donna Loring, LHD, Sherri Mitchell, Darren Ranco 2019 Episcopal Committee on Indian Relations

Panel #1: Maine Indians And The Maine State Constitution, John Dieffenbacher-Krall, James Francis, Donna Loring, Lhd, Sherri Mitchell, Darren Ranco

Maine Statehood and Bicentennial Conference

After a welcome from Emily Haddad, Dean, College of Liberal Arts & Sciences, panel participants will discuss the topic of Maine Indians and the Maine State Constitution.


The Emerging Use Of A Balancing Approach In Casey'S Undue Burden Analysis, Karen A. Jordan 2019 Selected Works

The Emerging Use Of A Balancing Approach In Casey'S Undue Burden Analysis, Karen A. Jordan

Karen A. Jordan

No abstract provided.


Criminally Homeless? The Eighth Amendment Prohibition Against Penalizing Status, Tim Donaldson 2019 City Attorney & Municipal Prosecutor, Walla Walla, Washington

Criminally Homeless? The Eighth Amendment Prohibition Against Penalizing Status, Tim Donaldson

Concordia Law Review

The article examines the extent to which the Cruel and Unusual Punishments Clause of the Eighth Amendment protects the ability of homeless persons to subsist in public places. It reviews Martin v. City of Boise and how the Eighth Amendment has been applied to test the constitutionality of local laws targeted at the homeless. It discusses whether homelessness constitutes a recognizable status protected by the Eighth Amendment, and, if so, whether protection is extended to unavoidable conduct resulting from that status.


Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith 2019 Michigan State University College of Law

Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

No abstract provided.


Eighth Amendment Protection In The 21st Century, Daniel Sorkin 2019 Golden Gate University School of Law

Eighth Amendment Protection In The 21st Century, Daniel Sorkin

GGU Law Review Blog

In Timbs v. Indiana the Supreme Court considered whether the Eighth Amendment’s bar on “excessive fines” is incorporated against the states under the Fourteenth Amendment. Timbs v. Indiana addressed another persistent question that has appeared on bar exams for years: “What provisions in the Bill of Rights have not yet been 'incorporated' against the States?”


Gamble V. United States: A Commentary, Kayla Mullen 2019 Duke Law

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single ...


Controversy And The Death Penalty, Samantha Pineo 2019 Merrimack College

Controversy And The Death Penalty, Samantha Pineo

Across the Bridge: The Merrimack Undergraduate Research Journal

The Declaration of Independence guarantees a right to life that was given by a creator. The Constitution guarantees a right to life, which can be found in both the explicit text itself as well as in between the lines. After looking at the founding documents through the lens of a moral reading, examining the case law, and reviewing the process of execution itself, it becomes clear that the death penalty violates one’s inalienable right to life, and is, in fact, a cruel and unusual punishment.


Hush Don't Say A Word: Safeguarding Student's Freedom Of Expression In The Trump Era, Laura R. McNeal 2019 University of Louisville, Louis D. Brandeis School of Law

Hush Don't Say A Word: Safeguarding Student's Freedom Of Expression In The Trump Era, Laura R. Mcneal

Laura R. McNeal

The controversy surrounding NFL player Colin Kaepernick’s act of kneeling during the national anthem in protest of police brutality against people of color continues to permeate public discourse. In March 2017, President Trump referenced Colin Kaepernick’s symbolic act during a rally in Louisville, Kentucky, in an effort to illustrate his strong opposition to anyone kneeling during the national anthem. In this speech, President Trump stated that although many NFL franchise owners were interested in signing Colin Kaepernick, many were afraid of receiving a nasty tweet from him. Likewise, in another speech, President Trump stated, “I think it’s ...


The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt 2019 Cedarville University

The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt

Channels: Where Disciplines Meet

How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of ...


If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch 2019 Washington and Lee University School of Law

If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch

Washington and Lee Law Review Online

The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign ...


Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie, Remedies, And Trade Secrets, Camilla A. Hrdy 2019 The University of Akron

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie, Remedies, And Trade Secrets, Camilla A. Hrdy

ConLawNOW

At “Erie at Eighty: Choice of Law Across the Disciplines,” I learned a lot from my colleagues on the intellectual property law panel. I also learned a lot from remedies expert Professor Michael Morley. Professor Morley argued quite vociferously that federal courts have wrongly been applying federal rules in deciding whether to grant injunctions for state law claims in diversity cases. In other words, federal courts regularly violate the Erie doctrine.

This has some fascinating implications for trade secret law. Prior to federalization, when plaintiffs could only bring state civil trade secret claims, federal courts in diversity cases naturally applied ...


Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert 2019 The University of Akron

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

ConLawNOW

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in federal ...


Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: An Erie Approach To Privilege Doctrine, Megan M. La Belle 2019 The University of Akron

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: An Erie Approach To Privilege Doctrine, Megan M. La Belle

ConLawNOW

Privilege rules, which determine whether information is discoverable in a particular litigation, often vary from jurisdiction to jurisdiction. Consequently, the Erie doctrine and other choice-of-law principles play an important role in shaping privilege law. This essay, written for the Sixth Annual Constitutional Law Conference at the University of Akron School of Law, considers two recent privilege cases—HannStar Display Corp. v. Sony Electronics, Inc. and In re Silver—which involved the California mediation privilege and the federal patent-agent privilege, respectively. While the HannStar court ignored well-established choice-of-law principles, the Silver decision shows that, when applied and interpreted appropriately, doctrines like ...


Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie'S Intellectual History, Craig Green 2019 The University of Akron

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie'S Intellectual History, Craig Green

ConLawNOW

Erie R.R. v. Tompkins is an iconic case in American law, and it has held that status for a very long time. One byproduct of such longevity is that the decision’s meaning and context have changed dramatically through the ages. Indeed, the sheer variability of Erie’s interpretations helps to explain why the decision has remained such an important, controversial, and influential feature of American legal thought for eighty years. This essay offers a brief and schematic account of Erie’s intellectual history, while also offering cautionary signals about Erie’s most recent group of interpreters. Even for ...


Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie As A Way Of Life, Ernest A. Young 2019 The University of Akron

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie As A Way Of Life, Ernest A. Young

ConLawNOW

This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat from pervasive tendencies, on both the political Left and Right, to collapse the distinction between law as a set of positivist choices adopted by government and law as the principles that we think are just ...


Symposium: 50 Years With The 25th Amendment: The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick 2019 The University of Akron

Symposium: 50 Years With The 25th Amendment: The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick

ConLawNOW

The Twenty-fifth Amendment’s development occurred over a period of ten years, from 1955 to 1965. This historic effort addressed questions raised but not answered at the Constitutional Convention of 1787 as to what constitutes “presidential inability” and who is authorized to determine its existence. This article is a response to the enormous interest in the amendment that has emerged between 2017 and 2019. Many accounts of what the amendment provided for and what was intended by its language appeared in the media and writings during this period. The article takes the reader through the step by step development of ...


Litigating War: The Justiciability Of Executive War Power, Chris Smith 2019 Duke Law

Litigating War: The Justiciability Of Executive War Power, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution ...


Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson 2019 Fordham University School of Law

Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson

Fordham Law Review

Over the course of 2018, a number of suspects in unsolved crimes have been identified through the use of GEDMatch, a public online genetic database. Law enforcement’s use of GEDMatch to identify suspects in cold cases likely does not constitute a search under the Fourth Amendment because the genetic information hosted on the website is publicly available. Transparency reports from direct-to-consumer (DTC) genetic testing providers like 23andMe and Ancestry suggest that federal and state officials may now be requesting access to private genetic databases as well. Whether law enforcement’s use of private DTC genetic databases to search for ...


Prosecutors At The Periphery, Peter M. Shane 2019 Moritz College of Law

Prosecutors At The Periphery, Peter M. Shane

Chicago-Kent Law Review

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed ...


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