Law Commons^™

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

UC Law Constitutional Quarterly

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

How American Society And Law Continue To Undermine People With Disabilities Seeking Education And Employment, Angelica Guevara

UC Law Constitutional Quarterly

Our Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six …

Will The New Roberts Court Revive A Formalist Approach To Fourth Amendment Jurisprudence?, Roger Antonio Tejada

UC Law Constitutional Quarterly

While all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could …

Rethinking The Fundamentals: Applying The Evolving Standards Of Decency Test To The Court’S Evaluation Of Fundamental Rights., Nick Wolfram

UC Law Constitutional Quarterly

In 1910, the Supreme Court recognized in Weems v. United States that a constitution “must be capable of wider application than the mischief which gave it birth.” This principle led to the creation of the Court’s two-pronged “evolving standards of decency,” test: (1) evidence of an objective indicia of a national consensus, and (2) the reviewing court’s own independent judgment. To this day the Court has yet to apply this test outside of the Eighth Amendment context. But can the “evolving standards of decency,” test identify and protect other fundamental rights? This Article explores how the Court could apply the …

“No Superior But God”: History, Post Presidential Immunity, And The Intent Of The Framers, Trace M. Maddox

Washington and Lee Law Review Online

This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.

Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is …

A Federal Inmate’S Right To Stay Home, Jordan Thorn

Texas A&M Law Review

Since the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so …

Analysis Of The Threshold Setting For Presidential Candidate According To The 2022-2023 Constitutional Court Ruling, Mochamad Rizky Soeoed

Jurnal Konstitusi & Demokrasi

The constitutional amendments that took place from 1999 to 2022 emphasized that Indonesia adheres to a presidential system of government. One way that is often discussed to increase the effectiveness of the presidential government system is to hold elections simultaneously by implementing the presidential nomination threshold which is now regulated in article 222 of Law Number 7 of 2017 concerning Elections which provides conditions for political parties to obtain a minimum of 20 percent of DPR seats. or 25 percent of valid national votes to be able to nominate candidates for President and Vice President. In practice, this provision always …

Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.

Reno-Sparks Indian Colony V. Haaland, William N. Rose

Public Land & Resources Law Review

Reno-Sparks Indian Colony v. Haaland added clarity to the scope of a federal agency’s duty to consult with Tribes under the National Historic Preservation Act. The case was the culmination of unsuccessful litigation efforts by Tribes to stop a large mining project, and it demonstrated the high hurdle Tribes face when challenging whether a federal agency has engaged in reasonable and good faith consultation.

Solar Energy Industries Association V. Federal Energy Regulatory Commission, Brandy Keesee

Public Land & Resources Law Review

In Solar Energy Industries Association v. Federal Energy Regulatory Commission (“Solar Energy”), the court grappled with a complex web of regulatory and environmental considerations. The overall dispute was the promulgation and implementation of Order 872, a directive issued by the Federal Energy Regulatory Commission (“FERC” or “Commission”), and its alignment with the Public Utility Regulatory Policies Act of 1978 (“PURPA”) and the Administrative Procedure Act (“APA”). The dispute in Solar Energy is about FERC’s interpretation and application of PURPA in managing qualifying facilities (“QFs”). The crux of the contention was whether FERC’s 2020 rule revisions set forth in Order 872 …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

Gender Pay Equity: An Analysis Of The United States Women’S National Team Soccer Settlement, Joni Hersch, Delaney M. Beck

Utah Law Review

Even though the United States Women’s National Team (“WNT”) has been far more successful than the United States Men’s National Team (“MNT”), the team members have experienced unequal treatment from the United States Soccer Federation (“USSF”) since its inception. In March 2019, members of the WNT filed suit against USSF, alleging that it had violated the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964. The complaint alleged that USSF had a policy of discriminating against the WNT due to their players’ gender by paying them less than the MNT and providing them with lesser …

The Mosaic Theory In Fourth Amendment Jurisprudence: The Last Bastion Of Privacy In A Camera-Surveilled World, Auggie Alvarado

St. Mary's Law Journal

No abstract provided.

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Questioning The Legitimacy Of The Expedited Removal Process – The Tall Task Of Protecting The Constitutional Rights Of One Of America’S Most Marginalized Groups, Jacob J. Bourquin

Cleveland State Law Review

This Note explores the origin and development of 8 U.S.C. § 1225—a heavily debated facet of the United States’ immigration law. Section 1225, colloquially referred to as the “expedited removal process,” has been interpreted to permit low-level immigration officers to summarily remove certain “arriving” noncitizens from the United States without affording them the procedural due process protections guaranteed under the Fifth Amendment of the United States Constitution to all individuals present in the United States. This Note posits that the current interpretation of § 1225, particularly the interpretation of “is arriving,” and application of the expedited removal process is inconsistent …

Preview — State V. Wood. First Impressions On Accountability And Cell-Site Location Information, Sarah K. Yarlott

Public Land & Resources Law Review

No abstract provided.

A Trigger Warning: Red Flag Laws Are Still Constitutionally Permissible And Could Reduce The Suicide Rates In The Country's Most Vulnerable States, Joseph C. Campbell

Journal of Law and Health

Montana, Alaska, and Wyoming lead the United States in a category coveted by no one: the suicide rate. Firearm ownership drives the rate to the disproportionate level it reaches year after year and the states are left with little recourse. This article argues the usefulness and constitutionality of narrowly tailored red-flag laws aimed exclusively at reducing the rate of suicide in these mountain states. The article follows Supreme Court jurisprudence leading up to New York Rifle & Pistol Association v. Bruen and offers an analysis that complies with the hyper textualist history and tradition test laid out by Scalia in …

California V. Texas: Avoiding An Antidemocratic Outcome, Jon Lucas

Journal of Law and Health

The Affordable Care Act (“ACA”) contains a section titled “Requirement to Maintain Essential Minimum Coverage.” Colloquially known as the Individual Mandate, this section of the Act initially established a monetary penalty for anyone who did not maintain health insurance in a given tax year. But with the passage of the Tax Cuts and Jobs Act, the monetary penalty was reset to zero, inducing opponents of the ACA to mount a legal challenge over the Individual Mandate’s constitutionality. As the third major legal challenge to the ACA, California v. Texas saw the Supreme Court punt on the merits and instead decide …

Regulating Food Waste Management In Indonesia: Do We Need An Omnibus Law (Again)?, Ni Gusti Ayu Dyah Satyawati, I Nyoman Suyatna, Putu Gede Arya Sumerta Yasa, I Dewa Gede Palguna, Nadeeka Rajaratnam

Indonesia Law Review

Indonesia was regarded to be the world's second-largest food loss and waste-producing country. Food waste contributes the most significant amount in Indonesia compared to other types of waste. This paper aims to discuss three legal issues. First, it identifies, in descriptive-normative means, the legal framework regulating food waste, which is the intersection of two legal regimes: 'the food management' and 'the waste and environmental management”. Second, it presents a comparative study by exploring the more advanced food waste legal frameworks, which take examples from Europe. The third objective is to recommend legal, institutional, and policy steps to mainstream food waste …

Quit Using Acquittals: The Unconstitutionality And Immorality Of Acquitted-Conduct Sentencing, Brenna Nouray

Pepperdine Law Review

This Comment examines the phenomenon of acquitted-conduct sentencing—a practice that allows a sentencing judge to enhance a criminal defendant’s sentence due to conduct for which he has already been acquitted. Seventeen-year-old Dayonta McClinton is one of many criminal defendants who have unjustly suffered at the hands of this practice when he received a thirteen-year enhancement because of conduct for which he already received a verdict of not guilty from a jury. This Comment argues that acquitted-conduct sentencing is unconstitutional, as it violates both the reasonable doubt standard required under the Due Process Clause of the Fifth Amendment and the jury …

The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson

Pepperdine Law Review

The Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey in June 2022 was met with waves of both support and criticism throughout the United States. Several states immediately implemented or began drafting trigger laws that criminalize seeking and providing an abortion. These laws prompted several period-tracking app companies to encrypt their users’ data to make it more difficult for the government to access period- and pregnancy-related information for criminal investigations. This Comment explores whether the Fourth Amendment and U.S. privacy statutes protect users of period-tracking apps from government surveillance. More specifically, this Comment argues that …

The Nonexistent Speedy Trial Right, Colleen Cullen

Pepperdine Law Review

The United States Constitution and all fifty states guarantee a speedy trial right for individuals accused of crimes. The controlling United States Supreme Court case, decided over fifty years ago, described the Sixth Amendment as a fundamental right with Fourteenth Amendment Due Process implications. Although the right to a speedy trial is a universally recognized right, this Article compellingly demonstrates the right is actually nonexistent throughout the United States. The COVID-19 pandemic highlighted and exacerbated this previously unrecognized problem in courthouses across the country, which has led to news outlets finally covering the issue of the nonexistent speedy trial. This …

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

A Restatement Of Democracy, Joshua Ulan Galperin

Villanova Law Review

No abstract provided.

Reforming The Ministerial Exception, Paul E. Mcgreal

Villanova Law Review

No abstract provided.

Silent Today, Conversant Tomorrow: Education Adequacy As A Political Question, Yeju Hwang

Northwestern University Law Review

When the Supreme Court declined to recognize the right to education as one fundamental to liberty, and thus unprotected by the U.S. Constitution, state courts took on the mantle as the next best fora for those yearning for judicial review of inequities present in American public schools. The explicit inclusion of the right to education in each state’s constitution carried the torch of optimism into the late twentieth century. Despite half a century of litigation in the states, the condition of the nation’s public school system remains troubling and perhaps increasingly falls short of expectations. Less competitive on an international …

The Impossibility Of Corporate Political Ideology: Upholding Sec Climate Disclosures Against Compelled Commercial Speech Challenges, Erin Murphy

Northwestern University Law Review

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the …