Law Commons^™

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith

Washington Journal of Social & Environmental Justice

No abstract provided.

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

On Traditionalism In Free Speech Law, R. George Wright

Journal of Legislation

No abstract provided.

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland

Pepperdine Law Review

While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …

The New Insular Cases, Willie Santana

William & Mary Journal of Race, Gender, and Social Justice

The Insular Cases is a name given to a series of cases decided by the U.S. Supreme Court dealing with the status of the territories the United States acquired at the turn of the twentieth century. The Insular Cases rely on outmoded assumptions about the peoples who live in those islands, ninety-eight percent of whom belong to racial and ethnic minorities, and extend the extraconstitutional doctrine of territorial incorporation, a Plessy-style doctrine of separate governance for these territories that is different than the territories that preceded them. These cases, and the doctrine they announced, have been universally decried as …

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern

Seattle University Law Review

This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Hernández V. Mesa: A Case For A More Meaningful Partnership With The Inter-American Commission On Human Rights, Peyton Jacobsen

Seattle University Law Review

Through an in-depth examination of Hernández, the Inter-American Human Rights System, and the success of Mexico’s partnership with said system, this Note will make a case for embracing human rights bodies— specifically, the Inter-American System on Human Rights—as an appropriate and necessary check on the structures that form the United States government. Part I will look closely at the reasoning and judicially created doctrine that guided the decision in Hernández, with the goal of providing a better understanding of the complicated path through the courts that led to a seemingly straightforward yet unsatisfying result. Part II will illustrate the scope …

First Comes Love. Then Comes Marriage. Then Comes A Baby In A Baby Carriage: An Application Of Protective Surrogacy Laws To The Tarheel State, Justin Lo

Seattle University Law Review

Assisted Reproductive Technology (ART) and determining parentage have a common feature: each is governed by state law or the lack of such laws. This lack of statutory regulations presents significant legal challenges to gay men who wish to start a family. Because same-sex male couples seeking to become fathers through ART and surrogacy are the most likely demographic to be impacted when determining parentage, laws that influence the direction of surrogacy will undeniably facilitate whether both males will be deemed a father. To provide same-sex male couples with a pathway to parenthood, North Carolina should (1) develop robust, protective surrogacy …

Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, Scott Johns

Seattle University Law Review

Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.

But rather than …

The Lost History Of Delegation At The Founding, Christine Chabot

Georgia Law Review

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

No, The Firing Squad Is Not Better Than Lethal Injection: A Response To Stephanie Moran’S A Modest Proposal, Michael Conklin

Seattle University Law Review

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that the firing squad is the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This Essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin

Pepperdine Law Review

Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …

Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti

William & Mary Law Review Online

In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Panel 4: Criminal Procedure And Affirmative Action

Georgia State University Law Review

Moderator: Lauren Sudeall

Panelists: Dan Epps, Gail Heriot, and Corinna Lain

Panel 6: The Median Justice

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Jonathan Adler, Lee Epstein, and Sasha Volokh

Panel 2: Justice Kennedy's Prose — Style And Substance

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Eric Berger, Michael Dorf, and Jamal Greene

Panel 3: Free Speech And Freedom Of Religion

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Mike Dorf and Eugene Volokh

Panel 5: Federalism And Separation Of Powers

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Stephen Griffin, Neil Kinkopf, and Ilya Somin

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Indiana Law Journal

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing …

A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen

Dickinson Law Review (2017-Present)

President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

Hearing The States, Anthony Johnstone

Pepperdine Law Review

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …