Tag: Constitutional law

Hidden or on the Hip: The Right(s) to Carry After Heller

James Bishop

The right to carry a loaded firearm—either openly or concealed—has never been more controversial.  The country is still reeling from shootings in Florida and Arizona by gunmen who obtained and carried their weapons in accordance with permissive state laws, and a national debate is raging over self-defense and access to handguns. …READ MORE » Read More »

Probabilistic Standing

F. Andrew Hessick

Under the case or controversy clause, the federal judiciary cannot address legal questions in the abstract; it may do so only in the course of resolving a case — that is, a dispute capable of resolution by a judicial order imposing a specific form of relief through an “an immediate… Read More »

Choice of Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove

Kermit Roosevelt III

Erie Railroad v. Tompkins is one of our great cases—a landmark in the law. But it remains in many ways surprisingly mysterious. Scholars disagree sharply over what it stands for, what its constitutional basis is, and even whether such a basis exists. Nor has the body of doctrine we call… Read More »

The Constitution’s Obscure Offenses Clause: Where the Alien Tort Statute and Military Commissions Meet

Eugene Kontorovich

I. Introduction
Obscure constitutional provisions rarely give rise to serious questions: that is why they are obscure. Yet sometimes provisions spring quickly from obscurity to relevance. Never in the nation’s history has the scope and meaning of Congress’s power to “Define and Punish . . . Offenses Against the Law… Read More »

Promoting Progress with Fair Use

Joshua Mitchell

Intellectual property (IP) law in the United States is off course and headed onto the shoals of ever-increasing protectionism. Copyright law, in particular, has come uncoupled from its constitutionally defined purpose. A tightly circumscribed right intended to incentivize creativity and the spread of knowledge has instead become an ever-expanding monopoly… Read More »

Collective Action Federalism: A General Theory of Article I, Section 8

Robert Cooter & Neil Siegel

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they… Read More »

Showdown in the Rose Garden: Congressional Contempt, Executive Privilege, and the Role of the Courts

Tim Mastrogiacomo

In early 2007, the U.S. House Committee on the Judiciary launched an investigation into the 2006 dismissal of seven U.S. Attorneys from the Department of Justice. The Committee issued subpoenas to White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers, ordering both to produce documents… Read More »

Applying the Fourth Amendment to the Internet: A General Approach

Orin Kerr

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First,… Read More »

Fourth Amendment Remedial Equilibration: A Look at Herring v. United States and Pearson v. Callahan

David Owens

The Fourth Amendment protects the “right of the people to be secure . . . against unreasonable searches and seizures . . . .” But, this amendment has long been steeped in controversy, especially when it comes to determining how to enforce it—by exclusionary rule requiring suppression of unlawfully-obtained evidence, civil… Read More »

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