Archive
VOLUME 21
Exchange Regarding the Senate's Duty to Consider SCOTUS Nominees
Seth Barrett Tillman & Chief Judge Peter J. Eckerstrom | Vol. 21 | Online
In his recent article, , Chief Judge Peter J. Eckerstrom argued that the United States Senate has a constitutional duty, under the Appointments Clause, to meaningfully consider presidential nominees to the United States Supreme Court. In this response, Seth Barrett Tillman contends that Judge Eckerstrom's analysis lacks and is undermined by a developed discussion of extant case law addressing this issue. Judge Eckerstrom then replies that the case law Mr. Tillman refers to misses the mark.
*Editor's Note: These essays have been reproduced in the Journal of Constitutional Law, Vol. 21, Issue 3.
*Editor's Note: These essays have been reproduced in the Journal of Constitutional Law, Vol. 21, Issue 3.
On the Senate's Purported Constitutional Duty to Meaningfully Consider Presidential Nominees to the
Supreme Court of the United States: A Response to Chief Judge Peter J. Eckerstrom
Seth Barrett Tillman | Vol. 21 | Online | February 2019
Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text
When It Refused to Consider President Obama's Nominee to Replace Justice Scalia
Chief Judge Peter J. Eckerstrom | Vol. 21 | Online | February 2019
Series on Solitary Confinement & the Eighth Amendment
Andrew Leon Hanna | Vol. 21 | Online
Prisoners are among the most vulnerable people in our society—and the most forgotten and mistreated among them are those living in solitary confinement. Today, nearly 100,000 Americans, including youth and people with serious mental illness, spend 23 hours a day alone in cells smaller than parking spaces, with almost no human engagement. Some live like this for days, others for decades. Over a century ago, the Supreme Court recognized that solitary confinement had been all-but-eliminated because it was “found to be too severe,” but the practice has made a resurgence in the last three decades. And somehow—despite an overwhelming societal and medical consensus today that the harms of solitary confinement are, still, too severe—the practice remains uninhibited by the Constitution in almost all forms, applied to almost all individuals, in almost all jurisdictions in America.
Now, however, the tide may be turning. Federal district courts have in recent years shown an increased willingness to question solitary confinement’s permissibility under the Eighth Amendment’s ban on cruel and unusual punishment, starting with particularly harsh forms of confinement against particularly vulnerable groups of people. Moreover, this occurs in the midst of a trend of expansions of Eighth Amendment rights and a growing recognition by state legislatures, professional organizations, and international bodies that solitary confinement is unacceptably harmful by today’s “evolving standards of decency.” And with the retirement of frequent solitary confinement critic Justice Kennedy, the center of gravity for judicial action is set to shift even further to the lower courts.
At this potentially pivotal moment, this three-part Article series seeks to provide the first comprehensive overview of the practice of solitary confinement in America and of the Eighth Amendment litigation it has spurred. And building on this context, the series introduces and details two arguments, under two separate Eighth Amendment doctrines, contending that solitary confinement is per se unconstitutional.
Now, however, the tide may be turning. Federal district courts have in recent years shown an increased willingness to question solitary confinement’s permissibility under the Eighth Amendment’s ban on cruel and unusual punishment, starting with particularly harsh forms of confinement against particularly vulnerable groups of people. Moreover, this occurs in the midst of a trend of expansions of Eighth Amendment rights and a growing recognition by state legislatures, professional organizations, and international bodies that solitary confinement is unacceptably harmful by today’s “evolving standards of decency.” And with the retirement of frequent solitary confinement critic Justice Kennedy, the center of gravity for judicial action is set to shift even further to the lower courts.
At this potentially pivotal moment, this three-part Article series seeks to provide the first comprehensive overview of the practice of solitary confinement in America and of the Eighth Amendment litigation it has spurred. And building on this context, the series introduces and details two arguments, under two separate Eighth Amendment doctrines, contending that solitary confinement is per se unconstitutional.
Article I: Solitary Confinement in America
Andrew Leon Hanna | Vol. 21 | Online | February 2019
Article II: The Present Constitutional Status of Solitary Confinement
Andrew Leon Hanna | Vol. 21 | Online | April 2019
Article III: Solitary Confinement as Per Se Unconstitutional
Andrew Leon Hanna | Vol. 21 | Online | May 2019
Down But Not Out: Trinity Lutheran's Implications for State No-Aid Provisions
Anthony Joseph | Vol. 21 | Online | November 2018
Can a state exclude a religious entity from a government funding program solely due to the entity’s religious character? Invoking the First Amendment’s “nondiscrimination” principle, the Supreme Court answered “no” to this question in its 2017 decision Trinity Lutheran Church of Columbia, Inc. v. Comer. Here’s the rub: currently, more than thirty-eight state constitutions include antiestablishment “no-aid” provisions that restrict or prohibit government funding to religious institutions.
But these state no-aid provisions should not be presumed unconstitutional. In contrast to the Trinity LutheranCourt’s formulation, the doctrinal development of the Religion Clauses shows that unconstitutional “discrimination” in government funding should evidence clear animus or hostility towards religion, rather than a mere lack of neutrality between secular and religious entities. Further, extending the nondiscrimination principle to government funding not only undermines established notions of neutrality under the Religion Clauses, but may reduce state legislatures’ competency and ability to affirmatively accommodatereligion.
In any event, state no-aid provisions likely can be reconciled with the Trinity Lutheran decision in practice. The decision’s distinctions between religious status and religious uses, state court interpretations of no-aid provisions and religious indoctrination, and federalism concerns should continue to allow states to provide antiestablishment protections beyond the federal constitutional minimum.
But these state no-aid provisions should not be presumed unconstitutional. In contrast to the Trinity LutheranCourt’s formulation, the doctrinal development of the Religion Clauses shows that unconstitutional “discrimination” in government funding should evidence clear animus or hostility towards religion, rather than a mere lack of neutrality between secular and religious entities. Further, extending the nondiscrimination principle to government funding not only undermines established notions of neutrality under the Religion Clauses, but may reduce state legislatures’ competency and ability to affirmatively accommodatereligion.
In any event, state no-aid provisions likely can be reconciled with the Trinity Lutheran decision in practice. The decision’s distinctions between religious status and religious uses, state court interpretations of no-aid provisions and religious indoctrination, and federalism concerns should continue to allow states to provide antiestablishment protections beyond the federal constitutional minimum.
VOLUME 20
Remedial Reading: Evaluating Federal Courts' Application of the Prejudice Standard in Capital Sentences from "Weighing" and "Non-Weighing" States
Sarah Gerwig-Moore | Vol. 20 | Online | January 2018
On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This is not uncommon. What stood out, however, in the preparation of his petition for certiorari in the United States Supreme Court, was certain terminology in the opinion that seemed to indicate it had re-weighed evidence offered in aggravation and mitigation of his death sentence. This was disconcerting, since Georgia is a “non-weighing” state. This error formed the basis for Mr. Bishop’s final legal challenge—which was ultimately unsuccessful, but which attracted national interest. This Article describes the heart of that challenge and explains why the appropriate legal tests matter in such cases: life is at stake.
Views Among College Students Regarding Freedom of Expression: An Analysis in Light of Key Supreme Court Decisions
Professor John Villasenor | Vol. 20 | Online | January 2018
This Essay presents and analyzes results from an August 2017 survey of 1,500 current students at U.S. four-year colleges and universities regarding freedom of expression under the First Amendment. The survey was designed to enable an examination of those views in light of key Supreme Court precedents on issues including “true threats,” incitements to imminent lawless action, and defamation. The results indicate that the common stereotype—that students have an overly narrow view of First Amendment freedoms—while correct in some respects, is also an oversimplification. A more accurate characterization is that many students hold views on freedom of expression that are inconsistent with the scope of the First Amendment—overly narrow in relation to expression that they deem offensive, but overly broad in relation to defamation and incitements to imminent lawless action.
A Counterfactual History of Transgender Students' Rights
Dean Kristi L. Bowman | Vol. 20 | Online | January 2018
Disputes about transgender students’ rights are growing in number and prominence. In spring 2017, when the Trump Administration rescinded the Obama Administration’s guidance that had protected transgender students, the Supreme Court cancelled oral argument in Gloucester County v. G.G., the case it was scheduled to hear on this topic, vacated the lower court’s opinion, and remanded the case. But what if that hadn’t happened? Specifically, what if Hillary Clinton had been elected president, the guidance had remained in place, and the Court had heard oral argument as originally scheduled in Gloucester County? This piece employs the approach of counterfactual history, presenting what I believe would have been the Court’s decision in Gloucester County in an alternate reality: The Supreme Court would have sided with student Gavin Grimm on administrative law grounds with Justice Kennedy, the swing vote, giving the liberal justices their fifth vote. Continuing in this parallel universe, I take what surely would have been an initial reaction by transgender advocates—that the decision was “the Brown v. Board of transgender rights”—and test the limits of that statement. Finally, I return to the present day, reflecting on what we can learn from the counterfactual history, considering how that knowledge can inform our understanding of what happened and why, discussing the current and emerging litigation in this area, and analyzing the importance of policy choices at the state and local level.
Resolving the Reasonable Belief and Probable Cause Circuit Split Stemming from Payton and Steagald
Steve Ragatzki | Vol. 20 | Online | December 2017
In Payton v. New York, the Supreme Court held that police, without a search warrant, may enter a suspect's home to execute an arrest warrant. Later in Steagald v. United States, the Supreme Court held that police may not execute an arrest warrant in a third party's home unless the police also had a search warrant for that home. The resulting ambiguity--how certain must police be that a suspect resides in a home--has led to a circuit split among federal courts of appeal. Some courts require both an arrest warrant and a search warrant. Other courts require an arrest warrant and a "reasonable belief" that the suspect resides in the home. This article examines arguments for and against each standard and concludes that the Fourth Amendment requires both an arrest warrant and a search warrant.
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Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(G)
Claudia E. Haupt | Vol. 19 | Online | April 2017
The American Bar Association has added an antidiscrimination provision to the Model Rules of Professional Conduct, making it professional misconduct for a lawyer to engage in harassment or discrimination on several bases “in conduct related to the practice of law.” But critics argue that Model Rule 8.4(g) raises serious First Amendment concerns. This Essay provides a partial defense of Model Rule 8.4(g) from a First Amendment perspective.
Using a conceptual framework of professional knowledge communities, this Essay examines the normative justifications underlying speech protection and the corresponding extent of permissible regulation in different contexts. So doing, it distinguishes “conduct related to the practice of law” from public discourse. When lawyers communicate with each other in “the practice of law,” they do not typically engage in public discourse. The regulatory efforts here occur in the space between the professional-client relationship and public discourse. This space is dominated by the interests of the knowledge community. Thus, outside of public dis-course, the justifications underlying First Amendment protection are generally compatible with a rule prohibiting discrimination in the practice of law. In public discourse, however, the interests underlying speech protection prohibit an expansive interpretation of “conduct relat-ed to the practice of law.”
Using a conceptual framework of professional knowledge communities, this Essay examines the normative justifications underlying speech protection and the corresponding extent of permissible regulation in different contexts. So doing, it distinguishes “conduct related to the practice of law” from public discourse. When lawyers communicate with each other in “the practice of law,” they do not typically engage in public discourse. The regulatory efforts here occur in the space between the professional-client relationship and public discourse. This space is dominated by the interests of the knowledge community. Thus, outside of public dis-course, the justifications underlying First Amendment protection are generally compatible with a rule prohibiting discrimination in the practice of law. In public discourse, however, the interests underlying speech protection prohibit an expansive interpretation of “conduct relat-ed to the practice of law.”
Construction, Originalist Interpretation and the Complete Constitution
Richard S. Kay | Vol. 19 | Online | February 2017
In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Contemporary descriptions of constitutional construction end up leaving some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is unavoidable because the constitutional text is inherently incomplete. It fails to provide a decision-rule for many—indeed for most—constitutional disputes. This conclusion follows, however,only when the Constitution is interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, originalist interpretation seeking to identify the meaning of the text that was actually intended by the people whose assent made it law, leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.
Now that the U.S. Supreme Court has legalized same-sex marriage nationwide, the only remaining marital frontier–at least for the Judeo-Christian nations of the West–is polygamy, or “plural marriage” as it is known under its sanitized name. This Article presents a brief history of polygamy, reviews how the courts have responded to legal challenges to monogamous marriage, and examines how the rationale in Obergefell legalizing same-sex marriage, including its constitutional analysis, can be applied to plural marriage. It also references Brown v. Buhman, a federal district court case invalidating the cohabitation prong of Utah’s anti-polygamy statute that was subsequently vacated and remanded, and concludes with the argument that while same-sex marriage merely extended the right to marry to homosexuals without disturbing the “status quo” of heterosexual marriage, plural marriage has the potential to disrupt both heterosexual and same-sex marriage by destroying the exclusivity of the marriage bond.
Confirming Judges in the 2016 Senate Lame Duck Session
Professor Carl Tobias | Vol. 19 | Online | November 2016
In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, the article suggests how the Senate should promptly reduce the multitude of unfilled judgeship once the lame duck session commences.
Non-Contentious Jurisdiction and Consent Decrees
Professor Michael T. Morley | Vol. 19 | Online | October 2016
This essay by Professor Michael T. Morley is a follow-up to his article published in the print version of the Journal of Constitutional Law, “Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases” (16 U. Pa. J. Const. L. 637 (2014)). The article was recently discussed by Professor James E. Pfander and Daniel D. Birk in a Yale Law Journal article, “Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction” (124 Yale L. J. 1345 (2015)). Pfander and Birk’s proposed re-interpretation of Article III provides a new basis for allowing federal courts to issue consent decrees.
Building on the author’s analysis in “Consent of the Governed,” this essay explains why requests for consent decrees are non-justiciable under Article III, and Pfander and Birk’s thesis unnecessarily overbroad. When parties have reached accord in a lawsuit, they may enter into a settlement agreement—a private contract—to dismiss the case, rather than seeking a consent decree. The author explains that, while Pfander and Birk provide numerous historical examples of federal courts engaging in ex parte, uncontested proceedings, none provides a basis for allowing them to enter binding orders in civil cases where the parties have affirmatively reached an agreement. The author further argues that courts should be cautious in relying on Founding Era practices and precedents in construing Article III, since many early interpretations and applications of Article III were either erroneous, or at the very least fundamentally irreconcilable with modern practice.
Building on the author’s analysis in “Consent of the Governed,” this essay explains why requests for consent decrees are non-justiciable under Article III, and Pfander and Birk’s thesis unnecessarily overbroad. When parties have reached accord in a lawsuit, they may enter into a settlement agreement—a private contract—to dismiss the case, rather than seeking a consent decree. The author explains that, while Pfander and Birk provide numerous historical examples of federal courts engaging in ex parte, uncontested proceedings, none provides a basis for allowing them to enter binding orders in civil cases where the parties have affirmatively reached an agreement. The author further argues that courts should be cautious in relying on Founding Era practices and precedents in construing Article III, since many early interpretations and applications of Article III were either erroneous, or at the very least fundamentally irreconcilable with modern practice.
VOLUME 18
Essays
Professor Peter M. Jaworski and Kee En Chong | Vol. 18 | Online | May 2016
In this essay, authors Peter M. Jaworski and Kee En Chong examine the apparent incoherence between progressives’ criticisms of originalism and their adherence to Supreme Court precedents. The authors argue that progressives face a dilemma: either archetypal progressivism is impractical, or it is inconsistent. Applying a progressive theory of interpretation to the meaning of court precedents would lead to an “explosion of interpretation,” whereby each legal actor would be free to apply his or her own interpretation to a legal rule. Therefore, progressives must either embrace this potentially chaotic result or adhere to originalist methods of interpreting legal judgments, which they have roundly criticized as methods of interpreting the constitution. The authors conclude that, given the impracticality of universally applying progressivism to interpret judgments, progressives have no choice but to live with the internal inconsistency in their chosen method of constitutional interpretation.
A Shelby County Case Study
Kaiya M. A. Arroyo (Penn Law Student) | Vol. 18 | Online | May 2016
Georgetown Professor Lawrence Solum provides a theory of constitutional interpretation in which constitutional decision-making is ubiquitously broken into two parts: constitutional interpretation and constitutional construction. Constitutional interpretation is the process by which judges determine the communicative and linguistic content of the text, while constitutional construction is the process by which judges take that content to construct a rule or holding. Although a judge is constrained by the original interpretation, the construction step requires a judge to use methods of interpretation beyond a discovery of the text’s original linguistic meaning.
In this article, Penn Law student Kaiya Arroyo argues that Professor Solum’s construction zone is ubiquitous when dealing with litigated constitutional questions – in other words, judges often cannot avoid making normative decisions about the meaning of constitutional text. The author uses the Supreme Court’s recent Shelby County v. Holder decision as an example of how judges can come to reasonable, opposing opinions about the meaning of a constitutional provision when its meaning remains vague after determining the original meaning of each word in the provision. Because it is possible for these divergent interpretations to arise from the same analysis, judges are forced to engage in the normative construction step in order to determine meaning, thereby proving the limits of originalism’s merit as an interpretive method.
In this article, Penn Law student Kaiya Arroyo argues that Professor Solum’s construction zone is ubiquitous when dealing with litigated constitutional questions – in other words, judges often cannot avoid making normative decisions about the meaning of constitutional text. The author uses the Supreme Court’s recent Shelby County v. Holder decision as an example of how judges can come to reasonable, opposing opinions about the meaning of a constitutional provision when its meaning remains vague after determining the original meaning of each word in the provision. Because it is possible for these divergent interpretations to arise from the same analysis, judges are forced to engage in the normative construction step in order to determine meaning, thereby proving the limits of originalism’s merit as an interpretive method.
Adam Lamparello | Vol. 18 | Online | May 2016
This article examines the difficult question of where the line should be drawn between speech that unduly offends members of the student and academic community, and unpopular speech that, while offensive, must be tolerated as part of classroom and university discourse. The author posits that many higher education institutions have implemented overly restrictive speech policies, which serve to coddle and shield students from disagreeable ideas at the expense of authentic academic discourse with diverse perspectives. In response to this dilemma, the author proposes a framework for evaluating the free speech rights in higher education that is analogous, in part, to two prongs under the standard for adjudicating sexual harassment jurisprudence under Title VII of the Civil Rights Act. This framework, rather than focusing on whether the speech in question warrants First Amendment protection, would focus on whether the speech causes harm to other members of the academic community.
VOLUME 17
Essays
The Enforcement Power in Crisis
William D. Araiza | Vol. 17 | Online | Dec. 2015
Certain developments over the past decade have raised serious questions about the coherence and credibility of judicial scrutiny of enforcement legislation. At the same time, the results of that scrutiny—most notably, the Supreme Court’s 2013 decision in Shelby County v. Holder—threaten the legacy of the Second Reconstruction. Professor William D. Araiza posits that the enforcement power is now in crisis as a result of these developments, and that two developments have caused much of the problem.
First, the court’s focus on whether enforcement legislation is congruent and proportional to a judge-created decisional heuristic, rather than on core equal protection requirements, demonstrates that it has misconceived its analysis. Second, the Court has recently exhibited a marked willingness to second-guess the empirical or policy foundations for enforcement legislation. As a solution to the apparent incoherence in enforcement power analysis that has arisen from these issues, Professor Araiza proposes that the Court develop a set of explicitly stated deference principles for analyzing enforcement legislation.
First, the court’s focus on whether enforcement legislation is congruent and proportional to a judge-created decisional heuristic, rather than on core equal protection requirements, demonstrates that it has misconceived its analysis. Second, the Court has recently exhibited a marked willingness to second-guess the empirical or policy foundations for enforcement legislation. As a solution to the apparent incoherence in enforcement power analysis that has arisen from these issues, Professor Araiza proposes that the Court develop a set of explicitly stated deference principles for analyzing enforcement legislation.
The Voting Rights Act, Questions of Deference, and Legislative Facts in a Digital Age
Allison Orr Larsen | Vol. 17 | Online | Oct. 2015
Allison Orr Larsen | Vol. 17 | Online | Oct. 2015
This essay is part of a series of articles arising from an American Association of Law Schools panel on “Perspectives on Federal Power Under the Reconstruction Amendments.” Professor Allison Orr Larsen presents the question of what the proper role of fact-finding is in the digital age for both legislative and judicial decision-makers. The author provides some helpful questions to frame the issue going forward, and offers two preliminary suggestions for how to answer this question.
First, Professor Larsen suggests that we should be critical in evaluating the process that resulted in a finding of fact. We should ask who is presenting the facts, and with what motives. Second, the author calls for a re-evaluation of what we call a fact, and how we determine what is or is not a fact. In an age of readily available data in the form of numbers, charts and statistics, normative debates can be deceptively framed as factual ones. Often, what may appear to be a finding of fact is really an inference drawn from a set of facts. When Congress and the judiciary disagree about what inferences should be drawn from a given set of data, the question becomes one of deference – should courts defer to the legislature’s conclusions, or should judges engage in their own factual analysis and inferences? Although this question cannot be easily resolved, Professor Larsen’s article takes a valuable first step in offering a framework for determining an answer.
First, Professor Larsen suggests that we should be critical in evaluating the process that resulted in a finding of fact. We should ask who is presenting the facts, and with what motives. Second, the author calls for a re-evaluation of what we call a fact, and how we determine what is or is not a fact. In an age of readily available data in the form of numbers, charts and statistics, normative debates can be deceptively framed as factual ones. Often, what may appear to be a finding of fact is really an inference drawn from a set of facts. When Congress and the judiciary disagree about what inferences should be drawn from a given set of data, the question becomes one of deference – should courts defer to the legislature’s conclusions, or should judges engage in their own factual analysis and inferences? Although this question cannot be easily resolved, Professor Larsen’s article takes a valuable first step in offering a framework for determining an answer.
Filling the Federal Appellate Court Vacancies
Carl Tobias | Vol. 17 | Online | Sept. 2015
Carl Tobias | Vol. 17 | Online | Sept. 2015
During President Obama’s tenure, both the President and Congress have drawn criticism over the processes employed for nominating and confirming Article III judges. Republican obstruction of numerous Obama nominees led the Senate in 2013 to change the number of votes required for cloture from sixty to a majority. Since then, criticism of the process has continued, despite the fact that appeals courts have encountered the fewest vacancies in twenty four years. Is this criticism justified?
Professor Carl Tobias evaluates the current system for nominating jurists and concludes that the Obama administration’s attempts to appoint well-qualified minority, female and LGBT nominees have been successful. The author concludes by offering solutions for further improving the nomination and confirmation processes, including the reinstitution of certain traditions, such as deference to home state senators and elevating judges currently on the bench.
Professor Carl Tobias evaluates the current system for nominating jurists and concludes that the Obama administration’s attempts to appoint well-qualified minority, female and LGBT nominees have been successful. The author concludes by offering solutions for further improving the nomination and confirmation processes, including the reinstitution of certain traditions, such as deference to home state senators and elevating judges currently on the bench.
Why Chief Justice Roy Moore and the Alabama Supreme Court Just Made the Case for Same-Sex Marriage
Adam Lamparello | Vol. 17 | Online | May 2015
Adam Lamparello | Vol. 17 | Online | May 2015
VOLUME 16
Essays
Universities as Constitutional Law Makers (And Other Hidden Actors in Our Constitutional Orders)
Adam J. MacLeod | Vol. 16 | Online | Oct. 2014
Adam J. MacLeod | Vol. 16 | Online | Oct. 2014
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Truthiness and the First Amendment
IIya Shapiro, Trevor Burrus, & Gabriel Latner | Vol. 16 | Online | May 2014 |
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Paroline, Restitution, and Transferred Scienter: Child Pornography Possessors and Restitution Based on a Commerce Clause-Derived, Aggregate Proximate Cause Theory
Adam Lamparello & Charles E. MacLean | Vol. 16 | Online | Mar. 2014 |
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What Happens if Data is Speech
Josh Blackman | Vol. 16 | Online | Feb. 2014 |
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Is Bakke Now a Super-Precedent and Does it Matter?
Mark S. Kende | Vol. 16 | Online | Dec. 2013 |
VOLUME 15
Essays
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The Unconstitutionality of Exit Searches
David R. Dorey | Vol. 15 | Online | May 2013 |
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Fisher's Fishing Expedition
Vinay Harpalani | Vol. 15 | Online | Feb. 2013 |
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Heed Not the Umpire (Justice Ginsburg Called NFIB)
Nicole Huberfeld | Vol. 15 | Online | Jan. 2013 |
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A Response to Beyond Separation: Professor Copeland's Ambitious Proposal for "Integrative Federalism"
Elizabeth Weeks Leonard | Vol. 15 | Online | Jan. 2013 |
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Decrypting the Fifth Amendment: The Limits of Self-Incrimination in the Digital Era
Vivek Mohan & John Villasenor | Vol. 15 | Online | Oct. 2012 |
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Originalist Ideology and the Rule of Law
Ian Bartrum | Vol. 15 | Online | Sept. 2012 |
VOLUME 14
Volume 14 of the Journal of Constitutional Law established Heightened Scrutiny as the Journal’s online companion. The two essays published for Volume 14 on the Journal’s former website have been reformatted and republished here.
Essays
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New Deal Lessons for the Affordable Care Act: The General Welfare Clause
Elizabeth Weeks Leonard | Vol. 14 | Online | Feb. 2012 |
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The Myth of the Terry Frisk
Annie Fisher | Vol. 14 | Online | Feb. 2012 |
Disclaimer: Any views expressed by authors on this website are not the personal views of the Journal of Constitutional Law, and the Journal's publication of these authors should not be viewed as an endorsement of their respective viewpoints.