"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, November 7, 2011

SSRN: Round up of Articles on Constitutional Law

Business and Constitutional Originalism in the Roberts Court

Vikram D. Amar

University of California, Davis - School of Law

Santa Clara Law Review, Vol. 49, No. 4, 2009


In this essay, the author briefly explore Robert Courts cases in two areas where business law intersects with my primary field of scholarship, the United States Constitution. Specifically, the extent to which the two newest Justices, Chief Justice Roberts and Justice Alito, have seemed unwilling to embrace the stances articulated by the two Justices most often associated with the interpretive philosophy of originalism, Justices Thomas and Scalia is examined. The examination takes place in the context of the limits the Constitution has been held to place on punitive damages and on state commercial regulation that runs afoul of the so-called "dormant Commerce Clause" idea. Then the article discuss a few reasons why, at least in the dormant Commerce Clause setting but perhaps more generally as well, the strong form of constitutional originalism embraced by Justice Thomas--and to a slightly lesser degree, Justice Scalia--might not be entirely appealing to newcomers.

Biological Metaphors for Whiteness: Beyond Merit and Malice

Brant T. Lee

University of Akron - School of Law

Berkeley Journal of African American Law and Policy, Vol. 13, p. 101, 2011

University of Akron Legal Studies Research Paper No. 11-12


There is a legal storm brewing over the cause of racial inequality. The eye of the storm is disparate impact liability under Title VII of the Civil Rights Act of 1964. The issue is the importance of discriminatory intent to antidiscrimination policy and theory. Washington v. Davis established the strong precedent that a violation of the Equal Protection Clause requires a finding of discriminatory intent. However, at the time Davis was decided, the Court had earlier determined in Griggs v. Duke Power Co. that an employment practice that results in a racially disparate impact constitutes a violation of Title VII’s prohibition on racial discrimination in employment, regardless of whether there was any discriminatory intent. While requiring discriminatory intent to establish a constitutional discrimination claim, the Davis Court did not address the lack of such a requirement in establishing a statutory discrimination claim under Title VII. Congress amended Title VII in 1991, codifying the disparate impact test.

An uneasy standoff exists between the constitutional antidiscrimination standard, which requires proof of discriminatory intent, and the statutory antidiscrimination standard, which does not. Although Congress’s power to impose such a statutory standard has survived to date, Equal Protection doctrine has become ever more hostile to government efforts to aid any racial group, regardless of the motivation. Of course, the standards themselves are not necessarily in conflict. A challenged practice by a state employer that is not intentionally discriminatory but has a disparate impact might certainly satisfy the constitutional standard but nonetheless violate the stricter statutory standard. But given the Court’s increasing reluctance to accommodate race-conscious affirmative action policies against Equal Protection challenges, the potential conflict is clear. The issue is not whether the practice that results in disparate impact will survive constitutional scrutiny. The issue is whether the statutory requirement to correct this impact will survive constitutional scrutiny. The possibility looms that a state employer might on the one hand be required by Title VII to eliminate facially race-neutral procedures or policies that have a disparate impact on minorities, and on the other hand be constitutionally forbidden to discard or change those policies implemented to benefit those minorities. In short, Title VII requires race-conscious action to neutralize disparate impact, while the Constitution prohibits it. Moreover, because Title VII requires such race-conscious changes, Title VII itself might be subject to an Equal Protection challenge.

Ricci v. DeStefano seemed to present an opportunity — or threat, depending on one’s appetite for resolving the matter — to settle this conflict. In Ricci, the New Haven Fire Department administered a promotions test that White firefighters passed at a significantly higher rate than African-American firefighters. Under the applicable rules, not a single one of the nineteen individuals eligible for promotion would have been African-American. Concerned that implementing the test might be challenged as violating Title VII’s disparate impact provision — and confronted with a threatened lawsuit to that effect — New Haven declined to use the test. White and Hispanic firefighters sued, claiming that the City had violated the Equal Protection Clause by choosing not to promote them using the test.

The Supreme Court in a 5-4 vote held that the City had violated Title VII because its actions constituted race-conscious disparate treatment, and there was no strong basis in evidence of disparate impact liability. Thus, the Court avoided the Equal Protection issue, although Justice Scalia in concurrence warned that “the war between disparate impact and equal protection will be waged sooner or later.”

Thus the stage has been set for a battle over the legitimacy of disparate impact. One day, a government employee somewhere is going to identify a policy or practice that has a racially disparate impact. There will be no showing of discriminatory intent. But the practice will be unrelated to any job requirement or business necessity, and there will be a direct conflict between the statutory mandate to eliminate disparate impact and the constitutional prohibition against doing so.

The Separation of Higher Powers

Richard Albert

Boston College - Law School

Southern Methodist University Law Review, Vol. 65, No. 1, 2012


The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, the author suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

Searching for the Crown of Feathers: An Essay on Psychology, Ethics, and Truth in Constitutional Law

Marie A. Failinger

Hamline University School of Law

Southern California Interdisciplinary Law Journal, Vol. 9, p. 381, 2000


Law professors and students, like aging scholars pouring over a fragment of text, are often captivated by the constitutional argument. It is aesthetically rich, but it encompasses only the fragment of a controversy within a living community. Like a bright carrot chunk in a rich stew, the constitutional argument takes its flavor from, and lends it color and texture to that controversy. Battleground, a narrative history of Mozert v. Hawkins County Board of Education, a constitutional case that attracted national advocacy groups, reminds us of the rich stew in which the Constitution comes to fully nourish our common political and social life. In attempting to brink a depth of understanding to the story of a constitutional controversy, we might normally talk about its “layers” or its “levels” of meaning. Battleground reminds us that this structural metaphor is too thin to convey the full meaning of a real constitutional case: more often than not, in such a complex case, our moments of understanding float in and out of our common vision, touching and drifting in a broth of living history. The article discusses the costs of ignoring “ingredients” of a constitutional case, such as the psychological elements, through the case of Mozert v. Hawkins County Board of Education.

The Legal and Political Divisions of Labour and the Regulatory State

Benedict Sheehy

RMIT University

Donald P. Feaver

RMIT University


Many researchers have observed that the ‘rise of the regulatory state’ is somehow consistent with, or reflects, a ‘division of labour’. Yet, this observation is rarely explained in any depth or detail. Though intuitively appealing, when examined more closely, the regulatory state appears more as a chaotic array of public bodies (agencies) that defy any attempt to classify and configure in way that conforms to Adam Smith’s elegant classical economic theory of a division of labour. A surfeit of political and legal factors obscure what, in theory, should appear as an efficient distribution of governance tasks among these public bodies (which hereinafter will be generically referred to as ‘regulatory agencies’). By using Emile Durkheim’s sociological extension of Smith’s theory to explain institutional expansion and specialization, two distinct divisions of labour become apparent- a legal division of governance labour and a political division of regulatory labour. The former explains the institutional change from a structural perspective thereby providing the legal foundation upon which the latter division of labour, described as a political strategy, could occur. Furthermore, the political strategy- less about gaining directorial ‘control’ of agency- more about choice of agency form to balance degree of control against management of political risk, administrative intensity and accountability.

Societal Change and Constitutional Interpretation

Conor O'Mahony

University College Cork (UCC)

Irish Journal of Legal Studies, Vol. 2, p. 71, 2010


The Irish courts have long operated on the basis that the Constitution is a living document to be interpreted in light of changing standards and conditions in society. As Irish society has changed dramatically in recent years, the courts have been presented with difficult questions regarding whether the degree of change justifies reinterpreting a constitutional provision. This has led some members of the judiciary to have reservations about the democratic legitimacy of such reinterpretations, and to doubt their own institutional competence to accurately reflect views in society. Accordingly, in two recent cases regarding same sex marriage and frozen embryos, the courts have chosen to defer to the legislative position as reflective of the will of society instead of exercising an independent judgment. This article critically assesses judicial deference as a method of reflecting societal change in constitutional interpretation, and argues that while it is superficially appealing, it is ultimately problematic. In this light, alternative methods of facilitating the evolution of constitutional principles will be considered.

Progressive Constitutionalism, Originalism, and the Significance of Landmark Decisions in Evaluating Constitutional Theory

William P. Marshall

University of North Carolina (UNC) at Chapel Hill - School of Law

Ohio State Law Journal, Vol. 72, No. 4, 2011


West Virginia State Board of Education v. Barnette, Brown v. Board of Education, Gideon v. Wainwright, and Reynolds v. Sims are among the most renowned cases in American history. Although controversial when decided, these cases are now considered part of the essential fabric of American constitutional law. Like the Constitution itself, these decisions have iconic stature in our political culture. And like the Constitution itself, they are celebrated as hallmarks of American liberty by both the left and the right.

Barnette, Brown, Gideon, and Reynolds, however, share another trait. They are products of progressive constitutionalism. They could not have been decided the way they were had the Court in those cases adhered to conservative theories of constitutional interpretation such as originalism or judicial restraint. Barnette, Brown, Gideon, and Reynolds therefore raise potential challenges to the viability of conservative constitutional theory. Generally, the validity of an interpretive theory should rest on its internal merits, not its external results. But if a particular theory cannot explain decisions that are universally considered to be both correct and integral to the American system of justice, the question necessarily arises as to whether there is something lacking in that theoretical account.

This Article explores the significance of Barnette, Brown, Gideon, and Reynolds as a basis for evaluating theories of progressive and conservative constitutionalism as methods of constitutional interpretation, focusing most specifically on the relationship between these decisions and originalism. Does the universal acceptance of these cases as hallmarks of American liberty suggest that a method of constitutional interpretation, such as originalism, that rejects these decisions is thereby inherently flawed?

The Substance and Scope of Aboriginal Rights in Canadian Constitutional Law

Jean LeClair

Université de Montréal - Faculty of Law


After some preliminary comments about the contemporaneous situation of Aboriginal peoples in Canada and about their fate under Canadian law prior to the enshrinement of their “aboriginal and treaty rights” in the Constitution Act of 1982. This paper addresses two features of the difficult task now foisted upon Canadian courts, i.e. the problem of demarcating the scope not only of the rights themselves, but also of the limits to which they can be subjected by the Federal and Provincial governments.

Public Health Versus Personal Liberty – The Uneasy Case for Individual Detention, Isolation and Quarantine

Jorge L. Contreras

American University - Washington College of Law

The SciTech Lawyer, Vol. 7, No. 4, Spring 2011


In the summer of 2007, Atlanta attorney Andrew Speaker made headlines when, while traveling in Italy on his honeymoon, he was diagnosed by the U.S. Centers for Disease Control (CDC) with extremely drug-resistant tuberculosis (XDR-TB), a contagious, untreatable and potentially-lethal condition. Against the instructions of U.S. public health authorities, Speaker re-entered the U.S. only to be served by the Centers for Disease Control (CDC) with a federal order of quarantine at a hospital in New York, the first such order to be issued in nearly half a century. Speaker challenged the CDC’s diagnosis of XDR-TB, resulting in an eventual downgrade of his condition and the lifting of restrictions on his movements. The Speaker case generated significant public attention and Congress conducted formal hearings regarding the incident. Speaker’s case highlights a crucial issue in public health law: the circumstances, if any, under which public officials may detain individuals against their will in order to protect the public from communicable diseases. In other words, when do utilitarian principles of social good trump the guarantees of individual rights afforded by the Constitution?

Law in the Egyptian Revolt

Tamir Moustafa

Simon Fraser University

Middle East Law and Governance, Vol. 3, pp. 181-191, 2011


Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defi ned by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak’s Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. This article examines the struggle for constitutional power in three periods – before, during, and after the Egyptian revolt of 2011.

Election Law as Elective of Choice

Kirsten Nussbaumer

Saint Louis University

Saint Louis University Law Journal, Vol. 53, 2012


This article, an invited contribution to a symposium on teaching election law, presents election law as a field that is fundamentally, inescapably interdisciplinary in nature and, on that account, of special value for our students. The interplay of doctrinal reasoning, empirical political science, and humanistic inquiry that characterizes election law is well-suited for both the traditional law school classroom and a practicum in election law.

European Security Constitution?

Kaarlo Heikki Tuori

University of Helsinki - Faculty of Law -Centre of Excellence in Foundations of European Law and Polity

Helsinki Legal Studies Research Paper No. 12


European constitution should be examined as a process – as constitutionalisation – rather than a standstill, once-made legal phenomenon. Moreover, this process has been a differentiated one: not all the aspects of European constitution have developed simultaneously or at a similar pace. Arguably, European constitutionalisation is susceptible to a periodisation where each stage receives its colouring from a particular constitution. Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, the pacemaker role appears to have been taken over by security constitution.

In European constitutionalisation, the original impetus to the development of non-economic aspects has arisen from the requirements and implications of the economic one. This also goes for the security constitution, whose development started as a response to the consequences of free movement of workers. But, subsequently, it grew independent of the logic of economic constitution and assumed a dynamics of its own. The paper deals with the specificity of the security constitution and its role among the many constitutions of Europe.

Wising Up: 'Son of Sam' Laws and the Speech and Press Clauses

Garrett Epps

University of Baltimore School of Law

North Carolina Law Review, Vol. 70, No. 2, pp. 493-552, January 1992


"Son of Sam" laws aim to compensate victims of crime by awarding them the income earned when the criminals who injured them sell the stories of their illegal exploits to the media. The prevalence of these statutes, which forty-three states and the federal government have enacted, reflects overwhelming popular approval of their underlying policy: "the victim must be more important than the criminal. "The broad reach of "Son of Sam" provisions, however, raises the question whether this well-meant social legislation impermissibly burdens constitutionally protected rights of free expression.

In this Article, Garrett Epps relates the tale of New York mobster Henry Hill, the writing of his autobiographical book Wiseguy, and the litigation it spawned. The Hill saga illustrates the conflict between preventing criminals from profiting at the expense of their victims and protecting the First Amendment rights of criminal authors. Mr. Epps first surveys the breadth of "Son of Sam" statutes, identifying the complex issues of free speech and press they create. He then recounts the history of the Wiseguy case, pointing out the confused approaches that state and lower federal courts have taken when analyzing the constitutionality of "Son of Sam" statutes. Mr. Epps resolves this confusion by noting that "Son of Sam" laws are targeted at the content of expressive activity, and therefore are subject to the strict-scrutiny analysis required by Supreme Court precedent. He asserts that although the sweeping "Son of Sam" statutes further a legitimate governmental interest in compensating victims of crime, they are not narrowly tailored to achieve that goal because they do not attach to a criminal's assets generally, but only to the proceeds from his literary ventures. Mr. Epps argues further that, even if "Son of Sam" laws are not unconstitutional per se, the overbreadth of many such statutes violates the Speech and Press Clauses. In particular, he contends that sequestering the proceeds of publishers and others who contract with criminal authors constitutes both a prior restraint and a licensing of publishers in violation of the First Amendment. Mr. Epps concludes that the rights of even criminal authors are firmly rooted in the Constitution. He thus calls for a "wising up" with regard to the constitutional issues raised by the Wiseguy case and for the striking down of "Son of Sam" laws as unjustifiable restrictions on free speech and a free press.

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