Hot Off the Presses - New Feature

Hello!  This new feature is dedicated to highlighting the newest scholarship in Constitutional Law.  The particular emphasis is on writing that will be relevant in the classroom.   So, without further adieu, here are the first three selections for this feature:

1.   The Empirical Judiciary, A. Christopher Bryant, U. of Cincinnati College of Law

What it's about:

This article reviews the book Constitutional Fictions by David Faigman.  The book notes that the Court frequently decides issues based in part on legislative facts.   But what criteria guide the Court in deciding which facts to accept?  That is the question confronted by Faigman and critiqued by Bryant. The article notes that unlike a trial court, which must adhere to the rules of evidence in its factual determinations, the Court is not guided by any "overriding theory of when it should be deferential to other bodies - judicial and non-judicial - that have made findings of constitutional fact," and "[t]his disorder has consequences."   Bryant concludes that Faigman "improves upon the pre-existing legal literature" by suggesting more parameters for the introduction and use of legislative facts in constitutitional cases, particularly his recommendation that when annoucing a constitutional rule, the Court should assign a burden of proof for legislative facts to one of the parties.  Nevertheless, Bryant believes that Faigman's recommendation - while a wise start - still leaves some gaps and he makes some suggestions in this regard.

Why you should read it:

In my opinion, anyone interested in how the Court decides its cases would enjoy this book review. The role of facts is frequently overlooked in constitutional analysis in favor of discussions about modes of interpretation and other such issues.  However, this writing sheds light on this important subject.  While I certainly recommend reading the entire book, reading the book review will be a good introduction for those who have not considered these issues previously.  Moreover, the book review format could prove a valuable tool to introduce students to this topic, especially if your course time will only permit a brief overview of the subject.  

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1461887.   (H/T to the Legal Theory Blog).

2. Human Rights at Home: Domestic Violence as a Human Rights Violation, Caroline Bettinger-López, Lecturer, Columbia Law School

What it's about:

In 2005, the Supreme Court ruled in Gonzales v. Castle Rock that the failure of Castle Rock police to respond to calls from Jessica Gonzales regarding the abduction of her daughters by their father was not a due process violation even though Ms. Gonzales possessed a restraining order.  After losing a Supreme Court case, one might think that all legal avenues of redress are closed.  However, Ms. Gonzales and her attorney, Ms. Bettinger-Lopez, did not take the Supreme Court's "no" for an answer.  Rather, the pair filed a petition before the Inter-American Commission on Human Rights arguing that “the U.S. government was responsible for violations of the American Declaration on the Rights and Duties of Man specifically the rights to life, security, family, due process, equality, truth, and freedom  from torture and cruel, inhuman, and degrading treatment."  The article chronicles the litigation at the international tribunal.

Why you should read it:

The vast majority of con law courses include Gonzales v. Castle Rock.  After reading a case with such harrowing facts and such an unsatisfactory result, many students wonder what happened next.  This writing is helpful because it answers that question.  Moreover, it is always helpful to remind students that while domestic law is the clear emphasis in law school, it is not the only route to justice in all cases. Finally, this story teaches students that a good advocate will think outside of the box for ways to further a client's goals. 

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1310316   (H/T to Feminist Law Professors)

   3.The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art, Kurt T. Lash, Loyola Law (Los Angeles) 

What it's about:

As the title suggests, this article explores the origins of the Fourteenth Amendment Privileges and Immunities Clause.  Rather than summarizing, I think it best to quote from the piece directly:

Historical evidence suggests that every aspect of this commonly presented historical
account is incorrect. John Bingham did not base the final version of the Fourteenth
Amendment on Article IV, he never relied on Corfield, and he went out of his way to
distinguish the rights protected under Section One from the rights protected under Article
IV. Far from relying on the language of Article IV, Bingham’s final draft of the Fourteenth
Amendment deleted such language and replaced it with a reference to the privileges and
immunities of United States citizens, a term of art broadly understood in antebellum
America as having nothing to do with state-conferred common law rights. Justice Miller’s
reading of the Privileges and Immunities Clause in Slaughterhouse not only mirrored the
views of the man who drafted Section One, it also followed a well established strain of
antebellum anti-slavery Republican thought. 

Why you should read it:

While I think the quote above says it all, I will only say in addition that in light of the significance of Slaughterhouse, it behooves us all to learn as much about the case as possible.  This writing does much to further that objective. 

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457360  (H/T to Legal Theory Blog)

That is all for this installment.  Keep watching and we'll keep you updated on the best of new scholarship.

NLS