Law Commons^™

The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti

St. John's Law Review

(Excerpt)

This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. …

Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian

Faculty Publications

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Faculty Publications

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current …

Christians And Pagans, Abner S. Greene

Journal of Catholic Legal Studies

(Excerpt)

In this response paper, I will offer four thoughts. First, I’m not sure the contemporary picture is best described as pagans vs. Christians. Second, I question the subtle move throughout the book from a generative/creative understanding of God to seeing God as normative, as supervening in human affairs regarding right and wrong conduct. Third, I push back on the notion that theistic belief (or, perhaps, the very existence of God) is necessary to ground meaning and value. Fourth, I discuss some modern-day U.S. constitutional issues that Smith discusses as examples of pagans persecuting Christians: (a) state-sponsored religious symbols, (b) …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

But, Men And Women Are Equally Compensated, Right? An Examination Of Why An Equal Rights Amendment In New York's Constitution Will End The Wage Gap, Amanda B. Slutsky

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes an ERA for New York’s constitution to end the wage gap between men and women, and uses language from H.J. Res 52 and S.B. No. 1919. To demonstrate why New York needs the amendment, this Note will discuss Maryland’s and California’s ERAs and equal pay laws to establish the benefits of an ERA and how both ERAs and equal pay laws, together, help shrink the wage gap in those states. With an ERA, New York’s courts will analyze sex-based discrimination claims with strict scrutiny, which provides heightened protection because women will be considered a suspect class. …

Protecting The Fifth Amendment: The Residual Clause In The Mandatory Guidelines Is Void For Vagueness, Olivia M. Tourgee

St. John's Law Review

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second …

Shut Up. You Don't Even Go Here.* An Examination Of First Amendment Rights For Noncitizens, Samantha Chasworth

Journal of Civil Rights and Economic Development

(Excerpt)

Section I of this Note provides background information about Pineda Cruz et al v. Thompson et al and explains the government’s argument in its Motion to Dismiss. Section II explains the First Amendment, demonstrating what it is and explaining its fundamental nature. Section III argues that noncitizens are entitled to First Amendment rights, presenting the non-speakerbased composition and character of the First Amendment. Next, this section demonstrates the many fundamental rights that noncitizens currently have in an effort to show the hole left open for the First Amendment. Next, this section describes the enormous consequences of not providing First …

Justice Jackson In The Jehovah's Witnesses' Cases, John Q. Barrett

Faculty Publications

(Excerpt)

I will address Justice Jackson and Jehovah’s Witnesses in four parts. First, I will begin with Robert Jackson himself, introducing the man who became a Supreme Court Justice, and who came to author Barnette and at least one other very notable opinion in a Jehovah’s Witness case. Second, I will turn to the Barnette case in its Supreme Court legal context, which turns out to be two Court terms, 1941–42 and 1942–43, of many Jehovah’s Witnesses cases. These cases produced a run of Court decisions that are a framework surrounding Barnette, and thus understanding them is important to …

Passive Avoidance, Anita S. Krishnakumar

Faculty Publications

In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent Terms, playing a significant role in justifying the Court’s construction in only one majority …

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Faculty Publications

(Excerpt)

Donald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency—the Casino Reinvestment Development Authority (CRDA)—to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land.

The property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional …