Category Constitutional Law

Justice Don Willett’s Uncontroversial Commitment to the Constitution

The 1905 Supreme Court case Lochner v. New York has long been a lightning rod for the claim that unelected judges have no place in our Constitutional system striking down laws purporting to ensure public health and safety. The periled precedent played its part this week as UT Law student Noah Horwitz dutifully deployed it against […]

Taxation Tuesday: Don’t Try to Pass a Wealth Tax

Good morning; let’s talk about tax policy!  One of the ways Senator Bernie Sanders has offered to finance his suggested health care plan is a wealth tax. A wealth tax does what it says on the box: taxes assets, as opposed to our current tax structure, which taxes income. This is far from the first […]

Forcing the Invisible Hand: The “Public Use” Conundrum– Part II

This essay is part II of a series authored by Tanya Abrahamian looking at the expansion of takings following the Supreme Court’s decision in Kelo v. New London. The essays support a reversion to a narrow conception of public use by describing the economic underpinnings of the authority and by countering what it deems to […]

The First Amendment: A Right Against Bared Arms

The past weekend’s white nationalist rally in Charlottesville meant déjà vu all over again regarding the status of “hate speech” under the First Amendment. As a positivist matter this debate is a nonsense: uncountable cases made it quite clear over the past hundred years that bigots are entitled to speak their mind. “Hate speech” is […]

The Proposed “Ad Tax” Would be Unconstitutional Under Central Hudson

[This post originally appeared here on The Hill’s Opinion Blog on August 4, 2017.] Fox News and CNN have something in common: they both rely on advertising to promote their journalistic messages and to help generate revenue needed to carry out their missions. Historically, the expenses associated with such advertising have not been subject to […]

Intergovernmental Evidence-Sharing Isn’t Caring: Discussing a Return to General Warrants

Intergovernmental evidence-sharing ignores that the Warrant Clause does not empower the government to seize property merely to search for evidence and is therefore tantamount to a fishing expedition that converts the particularized warrants demanded by the Fourth Amendment into the very “general warrants” the provision was understood to prevent.

Minimal Contact: Reconsidering Personal Jurisdiction Over Absent Class Members

Absent class members play a protean role in the lifecycle of a lawsuit.  Parties for some purposes, but not others, [1] their status continues to vex courts in a variety of situations.[2]  That incoherence largely stems from Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).  There, state and federal courts were permitted to exercise […]

Ad Fontes: “Last Game of the Year, Brent, Can’t Hold Anything Back Now,” Part I–Orders

[Ad Fontes was an early Renaissance and Reformation credo. Literally meaning “to the fountains,” the phrase embodied these movements’ emphasis on studying the original, primary sources in religious, philosophical, and scientific pursuits. This same commitment animates our efforts to follow our state and federal judiciaries’ decisionmaking in key cases being decided therein, given how these […]

Ad Fontes: The Week in SCOTUS, Part Deux

[Ad Fontes was an early Renaissance and Reformation credo. Literally meaning “to the fountains,” the phrase embodied these movements’ emphasis on studying the original, primary sources in religious, philosophical, and scientific pursuits. This same commitment animates our efforts to follow our state and federal judiciaries’ decisionmaking in key cases being decided therein, given how these opinions shape the legal environment in which we live and work. As such, this periodic series seeks to provide quick but insightful summaries of recently issued decisions by courts across the country, with brief commentary on the potential implications or consequences of the decisions. Enjoy!

–LDB Editors]

Ad Fontes: SCOTUS’s Week in Review

A quick take on the Supreme Court’s opinions released on June 19, 2017.