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Full-Text Articles in Law

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan Oct 2019

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


Counterfeit Campaign Speech, Rebecca Green Aug 2019

Counterfeit Campaign Speech, Rebecca Green

Faculty Publications

We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no ...


Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick Jul 2019

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick

Popular Media

No abstract provided.


The President’S Utterly Un-American Response To Dissent, Timothy Zick Jul 2019

The President’S Utterly Un-American Response To Dissent, Timothy Zick

Popular Media

No abstract provided.


The Sickness Unto Death Of The First Amendment, Marc O. Degirolami Jul 2019

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 ...


Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian Jul 2019

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 ...


Index To Butler Audio Recording Re The Impeachment Of Richard M. Nixon, John N. Jacob Jun 2019

Index To Butler Audio Recording Re The Impeachment Of Richard M. Nixon, John N. Jacob

Nixon Impeachment Audio Recording

No abstract provided.


Virginia Industrialization Group, Lewis F. Powell Jr. Jun 2019

Virginia Industrialization Group, Lewis F. Powell Jr.

Powell Correspondence

No abstract provided.


Recognition Of Validity And Incidents Of Marriages Between Blacks And Whites, Lewis F. Powell Jr. Jun 2019

Recognition Of Validity And Incidents Of Marriages Between Blacks And Whites, Lewis F. Powell Jr.

Powell Writings

No abstract provided.


Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee Jun 2019

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...


The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove Jun 2019

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.


Takings Implications Of Offshore Wind Energy Development, Marine Affairs Institute, Roger Williams University School Of Law, Jourdan Thompson, Read Porter Jun 2019

Takings Implications Of Offshore Wind Energy Development, Marine Affairs Institute, Roger Williams University School Of Law, Jourdan Thompson, Read Porter

Sea Grant Law Fellow Publications

This study reviews the potential takings liability associated with government development of wind turbine projects in offshore areas. It begins by introducing the development of the offshore wind industry in the U.S. and the benefits and potential impacts associated with this industry. Section 2 explains and evaluates potential takings claims under each of four theories: (1) direct appropriation or physical invasion; (2) categorical takings; (3) partial takings; and (4) nuisance takings. Section 3 concludes.


Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer Jun 2019

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...


Eighth Amendment Protection In The 21st Century, Daniel Sorkin May 2019

Eighth Amendment Protection In The 21st Century, Daniel Sorkin

GGU Law Review Blog

In Timbs v. Indiana the Supreme Court considered whether the Eighth Amendment’s bar on “excessive fines” is incorporated against the states under the Fourteenth Amendment. Timbs v. Indiana addressed another persistent question that has appeared on bar exams for years: “What provisions in the Bill of Rights have not yet been 'incorporated' against the States?”


Gamble V. United States: A Commentary, Kayla Mullen May 2019

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single ...


Conditionality And Constitutional Change, Felix B. Chang May 2019

Conditionality And Constitutional Change, Felix B. Chang

Faculty Articles and Other Publications

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority, the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement. Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union ...


Litigating War: The Justiciability Of Executive War Power, Chris Smith May 2019

Litigating War: The Justiciability Of Executive War Power, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution ...


The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor May 2019

The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor

Duke Journal of Constitutional Law & Public Policy Sidebar

In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of ...


Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law May 2019

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law

RWU Law

No abstract provided.


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker May 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a ...


Neglecting Nationalism, Gil Seinfeld May 2019

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely ...


An Organizational Account Of State Standing, Katherine Mims Crocker May 2019

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Publications

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like ...


A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill Apr 2019

A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill

Duke Journal of Constitutional Law & Public Policy Sidebar

In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to the Nevada Supreme Court, the Court has granted certiorari on this question once again. This Commentary contends that Hall was wrongly decided and should be overruled. The Constitution’s ratification did not alter the status of common-law State sovereign immunity ...


Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman Apr 2019

Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

Long-established antitrust precedent bars customers who buy a firm’s product through intermediaries from suing that firm for antitrust damages. In Apple Inc. v. Pepper, this “indirect purchaser rule” is brought into the smartphone age in a price-fixing dispute between technology giant Apple and iPhone users. This case will determine whether iPhone users buy smartphone applications directly from Apple through the App Store, or if Apple is merely an intermediary seller-agent of app developers. The indirect purchase rule is generally considered settled precedent. How the rule should apply to online platforms, however, differs between circuit courts, which have split on ...


The Coercion Doctrine Invigorated: Conditional Spending Since Nfib V. Sebelius, Marcus Harmon Waterman Apr 2019

The Coercion Doctrine Invigorated: Conditional Spending Since Nfib V. Sebelius, Marcus Harmon Waterman

Political Science Capstone Research Papers

The federal government has long utilized the practice of attaching conditions to the receipt of its funds. In the few instances that the Supreme Court had reviewed state challenges to conditions, it had ultimately set only minimal limitations on Congress’ spending power. That is why, when the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius was delivered, a host of scholarly predictions emerged. Some thought the ruling would prompt an unraveling of other conditional spending programs. Others anticipated more indirect, structural changes to flow from the decision. I find that elements of both have occurred ...


Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani Apr 2019

Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani

Duke Journal of Constitutional Law & Public Policy Sidebar

Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United States ...


Report On The Investigation Into Russian Interference In The 2016 Presidential Election. Volumes I & Ii. (Redacted Version Of 4/18/2019), Robert S. Mueller Iii Apr 2019

Report On The Investigation Into Russian Interference In The 2016 Presidential Election. Volumes I & Ii. (Redacted Version Of 4/18/2019), Robert S. Mueller Iii

U.S. Department of Justice Publications and Materials

EXECUTIVE SUMMARY TO VOLUME I

RUSSIAN SOCIAL MEDIA CAMPAIGN

The Internet Research Agency (IRA) carried out the earliest Russian interference operations identified by the investigation- a social media campaign designed to provoke and amplify political and social discord in the United States. The IRA was based in St. Petersburg, Russia, and received funding from Russian oligarch Y evgeniy Prigozhin and companies he controlled. Pri ozhin is widel re orted to have ties to Russian President Vladimir Putin [redacted]

In mid-2014, the IRA sent employees to the United States on an intelligence-gathering mission with instructions [redacted]

The IRA later used social ...


Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn Apr 2019

Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn

Faculty Scholarship at Penn Law

Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second ...


No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan Bernick Apr 2019

No Arbitrary Power: An Originalist Theory Of The Due Process Of Law, Randy E. Barnett, Evan Bernick

Georgetown Law Faculty Publications and Other Works

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction.

We begin by investigating the ...


Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue Apr 2019

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of ...