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Judicial Engagement, New Originalism, And The Fortieth Anniversary Of Government By Judiciary, Eric J. Segall

Fordham Law Review Online

Part I briefly summarizes Berger’s originalist approach. Part II describes how the new Judicial Engagement originalists suggest judges should resolve constitutional cases. Part III explains why text and history do not support their judicially enforceable, libertarian political agendas. Part III does not suggest that this agenda leads to bad results, is harmful, or should not be adopted by today’s judges. But for the sake of governmental and academic transparency, judges, legal scholars, and politicians who embrace Judicial Engagement, should also accept that their theory of judicial review is not supported by either the Constitution’s text or history. Judicial Engagement can …

It Takes A Village: Practical Guide For Authorized Encampments, Evanie Parr, Sara Rankin

Homeless Rights Advocacy Project

An authorized encampment is a community of unhoused people lawfully living outdoors on another entity’s property. Several cities have implemented authorized encampments as interim options for people experiencing homelessness, but implementation has been haphazard due to a dearth of practical guidance. This brief summarizes the challenges and opportunities posed by encampments hosted by universities, operated by a third party, self-governed, and with compelled participation.

Authorized encampments are proven to have many benefits, including improved service delivery and security, community, and the stability necessary for residents to access permanent housing. This guide summarizes the challenges and opportunities posed by various encampment …

Faith Is The First Step: Faith-Based Solutions To Homelessness, Katherine Means, Sara Rankin

Homeless Rights Advocacy Project

This brief guides faith leaders interested in providing homeless services on their land, highlighting legal and operational considerations and community education and outreach. Faith-based organizations (FBOs) have been important social services providers throughout history. Today, they continue to play an important role with specific legal protections. Indeed, FBOs enjoy special legal protections for their religious practice, which may allow them to provide shelter even if otherwise prohibited by local law. Any FBO with the desire to address homelessness on its land should be able to do so, and this brief sets forth best practices based on successful case studies in …

Hidden In Plain Sight: Finding Safe Parking For Vehicle Residents, Tyrone Ray Ivey, Jodleyn Gilleland, Sara Rankin

Homeless Rights Advocacy Project

Vehicle residents are a growing part of homeless populations. This guide examines case studies of successful safe parking programs in Washington and California that mitigate harm to vehicle residents and offer support that can lift people out of poverty and into stable, permanent housing. This report synthesizes key lessons from successful Safe Parking Programs, specifically around operational, legal, and public relations or messaging issues.

Begging For Change: Begging Restrictions Throughout Washington, Sara Rankin, Jocelyn Tillisch, Drew Sena, Judith Olson

Homeless Rights Advocacy Project

The act of panhandling, commonly known as begging, is a form of speech protected by the United States Constitution. But Washington’s cities are increasingly enacting laws that criminalize begging, despite courts finding these laws unconstitutional under both the First Amendment and the Due Process Clause. This brief surveys begging restrictions, assessing their scope and legality. This report offers the first statewide analysis of laws that restrict begging.

Among the brief's key findings is that the vast majority (86%) of Washington cities criminalize begging; the majority (83%) of these laws result in a criminal charge if violated, leading to serious collateral …

Consistent Passion, Little Fanfare: Rbg, Elizabeth Toohey

Publications and Research

Review of the 2018 documentary RBG

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.

Vice Presidential Immunity In The Age Of Impeachment: A Fresh Look At The Agnew Precedent, Mark E. Coon

ConLawNOW

Since the 1973 prosecution of incumbent Vice President Spiro T. Agnew, the U.S. Department of Justice has taken the position that sitting Vice Presidents are not constitutionally immune from criminal prosecution in the same way that sitting Presidents are. With the modern rise of prosecution and impeachment as weapons in the political arsenal, the Agnew precedent threatens to upset the constitutional balance of power because it makes Vice Presidents easily removable. This essay argues that the Agnew precedent is incorrect and that Vice Presidents are absolutely immune from prosecution while in office because of the Vice Presidency’s role in the …

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Washington and Lee Law Review

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood of …

Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe

Washington and Lee Law Review

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. …

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

Quarantine And The Federal Role In Epidemics, Wendy K. Mariner, Michael Ulrich

Faculty Scholarship

Every recent presidential administration has faced an infectious disease threat, and this trend is certain to continue. The states have primary responsibility for protecting the public’s health under their police powers, but modern travel makes diseases almost impossible to contain intrastate. How should the federal government respond in the future? The Ebola scare in the U.S. repeated a typical response—demands for quarantine. In January 2017, the Department of Health and Human Services and the Centers for Disease Control and Prevention issued final regulations on its authority to issue Federal Quarantine Orders. These regulations rely heavily on confining persons who may …

A Legal Frankenstein’S Monster: The Complete Bar Order In Securities Fraud Class Action Lawsuits, Jonathan C. Stanley

Washington and Lee Law Review

No abstract provided.

Rfra As Legislative Entrenchment, Branden Lewiston

Pepperdine Law Review

When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws …

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein

Maine Law Review

The editors of the Maine Law Review have been kind enough to offer me the opportunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, “When Should Rights ‘Trump’? An Examination of Speech and Property,” which appears in the preceding issue. In my earlier writings on constitutional law, more specifically, in my paper, Property, Speech and the Politics of Distrust, I took the position that modern Supreme Court jurisprudence had taken a turn for the worse insofar as it used different standards of review in passing on the constitutionality of legislation. The current position, roughly …

Precedent And Constitutional Structure, Randy J. Kozel

Northwestern University Law Review

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.

Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa

Northwestern Journal of Law & Social Policy

No abstract provided.

Ferc Ruling Undermines Energy Federalism And Arbitrarily Targets Mid-Atlantic Region Renewables, Philip Killeen

PEEL Alumni Scholarship

Part II of the Federal Power Act (FPA) requires that all prices set for the sale of electricity affecting interstate commerce between electrical utilities be "just and reasonable." Pursuant to this requirement, the FPA authorizes the Federal Energy Regulatory Commission (FERC) to suspend such electricity sales prices upon finding that they unduly disadvantage or discriminate between locations or types of power plants. In assigning this limited jurisdiction to the federal government, and by explicitly reserving to the states the exclusive jurisdiction over the mix of power plants supplying electricity demand, the FPA mandates a cooperative federalism model of electricity sector …

How Syria's Failure To Uphold The Kyoto Protocol And Paris Agreement Exacerbated The Effects Of Climate Change In The Levant, Nivea A. Ohri

PEEL Alumni Scholarship

The drought in the Levant Region of the Arab Republic of Syria has caused massive destruction by disrupting agriculture and forcing migration to cities. The drought, induced by climate change, has destroyed livelihoods, structures, and health of scores of people. Environmental tensions fed a political discontent that had long been simmering in rural areas, and was a trigger for the Syrian Revolution. Syrians even turned to USAID for help in 2008 when the Syrian minister of agriculture stated publicly, "the economic and social fallout from the drought was 'beyond [Syria's] capacity as a country to deal with." However, the impacts …

Can Courts Stop Citizens From Prosecuting Criminal Cases Under The Clean Water Act?, Hannah Gardenswartz

PEEL Alumni Scholarship

This Article argues that citizens have a right to intervene in criminal actions brought by the govern- ment under the Clean Water Act; however, doing so would be so disruptive to the penal system that a court could not allow intervention in this context.

Ban On Plastic Microbeads: Too Narrow, Or Just Narrow Enough?, Liz Michalowska

PEEL Alumni Scholarship

President Barack Obama signed the Microbead-Free Waters Act of 2015 (MFWA) which banned plastic microbeads in 2015. The MFWA specifically banned plastic microbeads found in cosmetic consumer exfoliants that get rinsed and released into waste-water treatment centers, which then flow into lakes, rivers, and oceans. However, the MFWA does not regulate microbeads found in consumer products that are not rinsed off, such as deodorants, lotions, or other non-cleansing products. The Act also does not ban non-cosmetic microbeads, ranging from those found in cleaning products and medical applications to oil and gas exploration. Critics of the MFWA argue that the ban …

Real Property Sublessors Escape Cercla Owner Liability In The Second Circuit, Alison Shlom

PEEL Alumni Scholarship

Under federal law, a tenant who subleases a property to a sublessee who contaminates the site may be liable for cleanup costs depending on which federal court hears the case. The Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA) circular definition of a property "owner" has resulted in a circuit split on this issue. ln the Second Circuit, courts rely on a five-factor test to determine owner liability. In sharp contrast, the Ninth Circuit incorporates state-specific law to assign owner liability.

The Federal Government's Sovereign Immunity Under Cercla And Its Effects On The Hazardous Waste Cleanup Of The District Of Columbia's Washington Navy Yard, Nicole J. Waxman

PEEL Alumni Scholarship

The United States Supreme Court's weakening of the waiver of federal sovereign immunity under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or "the Act") is preventing federally contaminated sites such as the Washington Navy Yard from being fully remediated. In 1998, the United States Environmental Protection Agency (EPA) designated the Navy Yard- a property with a lengthy history of hazardous waste contamination- as a priority for cleanup pursuant to CERCLA. However, the hazardous waste currently contaminating the Navy Yard has not been remediated due to a lack of intra-governmental enforcement. This inaction leaves the people who live and …

A New Nuclear Threat: The Tenth Circuit's Shocking Misinterpretation Of Preemption Demanding An Amendment To The Price-Anderson Act, Stephanie Fishman

PEEL Alumni Scholarship

Nuclear power will be the key to America's energy future. While we still live in the wake of Soviet-era nuclear stereotypes, the horror of Chernobyl, and face dilemmas on where to store the waste, nuclear energy is the safest, cleanest, and most reliable source. A nuclear energy facility can produce energy at a ninety-one percent efficiency rate, 24/7, with zero carbon emissions. Additionally, nuclear plants run on uranium, an element so energy-rich that a single fuel pellet the size of a fingertip contains as much energy as 17,000 cubic feet of natural gas, 149 gallons of oil, or one ton …

Policy Analysis Of The Water Crisis In Cape Town, South Africa, Alycia Kokos

PEEL Alumni Scholarship

Following a three-year drought, the city of Cape Town, South Africa faces an unprecedented municipal crisis. Residents are being asked to curb their daily municipal water use to thirteen gallons from their already restricted daily allowance of twenty-three gallons in order to avoid the impending "Day Zero" in which residential and commercial taps will be turned off for nearly four million residents. Though water consumption has decreased since January 2018, most residents have not complied with the restriction. This creates a point of tension in the diverse city that contains both luxury homes and shanty towns.