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Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell 2010 Duke Law School

Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher 2010 Duke Law School

Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher

Faculty Scholarship

Perhaps the most famous character in modern physics is Schrödinger’s Cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead — “mixed or smeared out in equal parts” — until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is not ...


A Coase Theorem For Constitutional Theory, Neil S. Siegel 2010 Duke Law School

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan ...


All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr. 2010 Duke Law School

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by ...


On The Constitutionality Of Health Care Reform, Barak D. Richman 2010 Duke Law School

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.


Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave 2010 Golden Gate University School of Law

Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave

Publications

People v. Gonzales involved an issue that continues to divide lawyers, judges, scholars, politicians, as well as the general public: how best to protect individuals from law enforcement conduct that violates constitutional protections? This question is particularly controversial in the context of a criminal case, since the exclusion of illegally obtained evidence often results in the alleged criminal going free. In Gonzales, the California Supreme Court was asked to adopt the exclusionary rule as a remedy for violations of constitutional rights. A majority of California Supreme Court justices answered this in the negative. Justice Carter disagreed, and his analysis provided ...


Justice Carter’S Dissent In People V. Crooker: An Early Step Towards Miranda Warnings And The Expansion Of The Fifth Amendment To Pre-Trial Confessions, Helen Y. Chang 2010 Golden Gate University - San Francisco

Justice Carter’S Dissent In People V. Crooker: An Early Step Towards Miranda Warnings And The Expansion Of The Fifth Amendment To Pre-Trial Confessions, Helen Y. Chang

Publications

By the middle of the 20th century, police interrogation of criminal suspects had developed into a fine art designed to extract confessions. The use of the “third degree,” otherwise known as the infliction of physical or mental suffering, was not uncommon. “[T]he most frequently utilized interrogation techniques have involved mental and psychological stratagems—trickery, deceit, deception, cajolery, subterfuge, chicanery, wheedling, false pretenses of sympathy, and various other artifices and ploys.” As the United States Supreme Court noted in its famous Miranda v. Arizona decision, this type of police interrogation involved “inherent compulsion,” was “inherently coercive,” “exact[ed] a heavy ...


The Forgotten Freedom Of Assembly, John D. Inazu 2010 Duke Law School

The Forgotten Freedom Of Assembly, John D. Inazu

Faculty Scholarship

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939 ...


Collective Action Federalism: A General Theory Of Article I, Section 8, Neil S. Siegel, Robert D. Cooter 2010 Duke Law School

Collective Action Federalism: A General Theory Of Article I, Section 8, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own.

Subsequent interpretations of Section ...


The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu 2010 Duke Law School

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Faculty Scholarship

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men ...


What Does It Take To Make A Federal System? On Constitutional Entrenchment, Separate Spheres, And Identity, Ernest A. Young 2010 Duke Law School

What Does It Take To Make A Federal System? On Constitutional Entrenchment, Separate Spheres, And Identity, Ernest A. Young

Faculty Scholarship

No abstract provided.


“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman 2010 Elisabeth Haub School of Law at Pace University

“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman

Pace Law Faculty Publications

My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.


Untangling Double Jeopardy In Mixed-Verdict Cases, Lissa Griffin 2010 Elisabeth Haub School of Law at Pace University

Untangling Double Jeopardy In Mixed-Verdict Cases, Lissa Griffin

Pace Law Faculty Publications

This Article attempts to describe and untangle the confusion leading up to and resulting from the Yeager decision. Part II examines the four distinct double jeopardy areas presented in Yeager, with particular emphasis on the two conflicting precedents of collateral estoppel and the non-finality of a hung jury. Part III closely examines the Yeager decision itself. Part IV analyzes Yeager in light of its tangled doctrinal history and places it in the context of the Court's several other short-lived and rapidly reversed precedents. The Article concludes that the Court's holding in Yeager is neither justified by its precedent ...


The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg 2010 Elisabeth Haub School of Law at Pace University

The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg

Pace Law Faculty Publications

The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum ...


Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman 2010 Elisabeth Haub School of Law at Pace University

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Pace Law Faculty Publications

This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction has ...


Transformative Constitutionalism In South Africa: Creative Uses Of Constitutional Court Authority To Advance Substantive Justice, Eric Christiansen 2010 Golden Gate University School of Law

Transformative Constitutionalism In South Africa: Creative Uses Of Constitutional Court Authority To Advance Substantive Justice, Eric Christiansen

Publications

In this Article, I will first discuss some easily overlooked constitutional tools for promoting greater social justice: the procedural provisions of the South African Constitution related to jurisdiction, access, remedies and constitutional interpretation. Following that, I will use three recent Constitutional Court cases to demonstrate the Court's creative (and promising) use of its judicial authority to advance substantive justice. By way of conclusion, I will elaborate on the meaning of these recent developments for the transformative agenda of South Africa and for other nations.


Dangerous Terrain: Mapping The Female Body In Gonzales V. Carhart, B. Jessie Hill 2010 Case Western Reserve University School of Law

Dangerous Terrain: Mapping The Female Body In Gonzales V. Carhart, B. Jessie Hill

Faculty Publications

The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power, the object that the state acts both upon and for. At the same time, the body is often constructed in legal discourse as the site of personhood - our most intimate, sacred, and inviolate possession. The inherent tension between these two concepts of the body permeates the law, but it is perhaps nowhere more prominent than in the constitutional doctrine pertaining to abortion. Abortion is one of the most heavily regulated medical procedures in the United States, and ...


Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe 2010 Indiana University Maurer School of Law

Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe

Articles by Maurer Faculty

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal ...


The 9/11 Commission And The White House: Issues Of Executive Privilege And Separation Of Powers, Daniel Marcus 2010 American University Washington College of Law

The 9/11 Commission And The White House: Issues Of Executive Privilege And Separation Of Powers, Daniel Marcus

Articles in Law Reviews & Other Academic Journals

No abstract provided.


John Brown's Constitution, Robert L. Tsai 2010 American University Washington College of Law

John Brown's Constitution, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but ...


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