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Fourth Amendment Textualism, Jeffrey Bellin 2019 William & Mary Law School

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars ...


The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese III, Matthew Spalding 2019 Cleveland State University, Cleveland-Marshall College of Law

The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding

David F. Forte

The Heritage Guide to the Constitution, first released in 2005, brought together more than 100 of the nation’s best legal experts to provide line-by-line examination of each clause of the Constitution and its contemporary meaning—the first such comprehensive commentary to appear in many decades. The Heritage Guide to the Constitution: Fully Revised Second Edition takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform. The Founders’ guiding principles remain unchanged, yet a number of Supreme Court decisions over the past ...


"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon 2019 Cleveland-Marshall College of Law, Cleveland State University

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Lee Fisher

The authors provide varying opinions on the Second Amendment.


Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir 2019 Cleveland-Marshall College of Law, Cleveland State University

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Doron M Kalir

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex ...


The Federalist Society Majority, Lawrence Baum, Neal Devins 2019 William & Mary Law School

The Federalist Society Majority, Lawrence Baum, Neal Devins

Neal E. Devins

No abstract provided.


Texas, The Death Penalty, And Intellectual Disability, Megan Green 2019 St. Mary's University School of Law

Texas, The Death Penalty, And Intellectual Disability, Megan Green

St. Mary's Law Journal

Abstract forthcoming


Article Ii And Antidiscrimination Norms, Aziz Z. Huq 2019 University of Chicago Law School

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings ...


National Injunctions And Preclusion, Zachary D. Clopton 2019 Northwestern Pritzker School of Law

National Injunctions And Preclusion, Zachary D. Clopton

Michigan Law Review

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum 2019 William & Mary Law School

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum

Neal E. Devins

No abstract provided.


The Rise Of The Viewpoint-Discrimination Principle, Lackland H. Bloom Jr. 2019 Southern Methodist University, Dedman School of Law

The Rise Of The Viewpoint-Discrimination Principle, Lackland H. Bloom Jr.

SMU Law Review Forum

The Supreme Court’s freedom-of-speech jurisprudence is complicated. There are few hard and fast rules. One is that judicially-imposed prior restraints on speech are hardly ever permissible. In recent years, another hard and fast rule appears to have developed. It is that the government may never prohibit speech simply on account of its viewpoint. It remains unclear whether this is a per se prohibition or whether such viewpoint-focused regulation must overcome the all but insurmountable burden of serious strict scrutiny. In any event, any governmental rule that attempts to regulate speech based on its point of view will almost certainly ...


Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins 2019 William & Mary Law School

Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins

Neal E. Devins

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation ...


What Standards Apply When Freedoms Collide?, Neal Devins 2019 William & Mary Law School

What Standards Apply When Freedoms Collide?, Neal Devins

Neal E. Devins

No abstract provided.


What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins 2019 William & Mary Law School

What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins

Neal E. Devins

No abstract provided.


Who Is Injured When Racially Discriminatory Private Schools Are Tax-Exempt?, Neal Devins 2019 William & Mary Law School

Who Is Injured When Racially Discriminatory Private Schools Are Tax-Exempt?, Neal Devins

Neal E. Devins

No abstract provided.


The Triumph Of Timing: Raines V. Byrd And The Modern Supreme Court's Attempt To Control Constitutional Confrontations, Neal Devins, Michael A. Fitts 2019 William & Mary Law School

The Triumph Of Timing: Raines V. Byrd And The Modern Supreme Court's Attempt To Control Constitutional Confrontations, Neal Devins, Michael A. Fitts

Neal E. Devins

No abstract provided.


The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel 2019 William & Mary Law School

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

Neal E. Devins

No abstract provided.


The Supreme Court And Private Schools: An Update, Neal Devins 2019 William & Mary Law School

The Supreme Court And Private Schools: An Update, Neal Devins

Neal E. Devins

No abstract provided.


The Majoritarian Rehnquist Court?, Neal Devins 2019 William & Mary Law School

The Majoritarian Rehnquist Court?, Neal Devins

Neal E. Devins

No abstract provided.


The Possible Final Word On Employment Discrimination Relief, Neal Devins 2019 William & Mary Law School

The Possible Final Word On Employment Discrimination Relief, Neal Devins

Neal E. Devins

No abstract provided.


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