City of Los Angeles v. Patel
The distinction between “facial” and “as-applied” challenges is a notoriously confusing area of law. Judicial review of Fourth Amendment reasonableness claims, however, has generally been insulated...
View ArticleTaking the Idea of Constitutional “Meaning” Seriously
David Strauss’s Foreword, entitled Does the Constitution Mean What It Says?,438×438. David A. Strauss, The Supreme Court, 2014 Term — Foreword: Does the Constitution Mean What It Says?, 129 Harv. L....
View ArticleHeien v. North Carolina
The Supreme Court has long held that a police officer’s reasonable mistake of fact may give rise to a lawful search or seizure under the Fourth Amendment.331×331. See, e.g., Illinois v. Rodriguez, 497...
View ArticleDoes Meaning Matter?
I am very grateful to Professor Richard Fallon for his Taking the Idea of Constitutional “Meaning” Seriously,323×323. Richard H. Fallon, Jr., Taking the Idea of Constitutional “Meaning” Seriously, 129...
View ArticleConstitutional Bad Faith
The full text of this Article may be found by clicking on the PDF link below. The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically...
View ArticleComparing Constitutional Bad Faith
David Pozen’s Constitutional Bad Faith302×302. David E. Pozen, Constitutional Bad Faith, 129 Harv. L. Rev. 885 (2016). is a rich, insightful, and highly original article identifying, and then exploring...
View ArticleTrash Talk at the Supreme Court: Reflections on David Pozen’s Constitutional...
In his remarkably rich essay on the notion of “bad faith,” Professor David Pozen offers two quite different notions of the term. The first involves what might well be viewed as knowing deception — even...
View ArticleThe Constitution Means What the Supreme Court Says It Means
[T]he Constitution requires not following the dictates of the document but working out, over time, a complex balance among institutional interests. That is how we do constitutional law . . . . [I]t is...
View ArticleIn re al-Nashiri
The Constitution’s Appointments Clause provides that the President, “by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States,” except that “Congress may by...
View ArticleLet the End Be Legitimate: Questioning the Value of Heightened Scrutiny’s...
Introduction: The State-Interest Inquiry It is a fundamental principle of constitutional law that a state government’s police power “is one of the least limitable of governmental powers.”1×1....
View ArticleMeshal v. Higgenbotham
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,1×1. 403 U.S. 388 (1971). the Supreme Court held that federal officers could be sued for damages based on violations of Fourth...
View ArticleThe Positive Law Model of the Fourth Amendment
The full text of this Article may be found by clicking on the PDF link below. For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth...
View ArticleThe Positive Law Floor
The positive law model maintains that a Fourth Amendment search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government actually engaged in. The...
View ArticleFree Speech After Reed v. Town of Gilbert
After Justice Scalia’s death, it seems everything is up for grabs: gun rights, reproductive rights, voting rights, environmental protection, labor unions, campaign finance. In every major area where...
View ArticleSissel v. United States Department of Health & Human Services
Article I, Section 7, Clause 1 of the Constitution, known as the Origination Clause, reads: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or...
View ArticleThe Age of Scalia
The full text of this Essay may be found by clicking the PDF link below. During periods of apparent social dissolution the traditionalists, the true believers, the defenders of the status quo, turn to...
View ArticleA Fool for the Original Constitution
I confess that Justice Antonin Scalia was one of my heroes. He did not seem a demigod; he was no Washington, Lincoln, or Gandhi. Justice Scalia could be too pugnacious. He could vent against colleagues...
View ArticleHeffernan v. City of Paterson
Individuals do not lose all of their First Amendment protections while working for the government, but those protections are limited in important yet often unpredictable ways.279×279. See, e.g.,...
View ArticleFranchise Tax Board v. Hyatt
The Constitution commands that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”193×193. U.S. Const. art. IV, § 1. But...
View ArticleBank Markazi v. Peterson
Cases about foreign affairs have long raised unique and challenging separation of powers issues.110×110. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II), 135 S. Ct. 2076 (2015)...
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