Law Commons^™

Lessons Of The Plague Years, Barry Sullivan

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The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

The Demise Of The Bivens Remedy Is Rendering Enforcement Of Federal Constitutional Rights Inequitable But Congress Can Fix It, Henry Rose

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A federal statute, 42 U.S.C. 1983, allows a person whose federal constitutional rights are violated by state actors to sue them for damages to compensate for the harm caused by the constitutional violations. There is no analogous federal statute that allows a person whose federal constitutional rights have been violated by federal actors to sue them for damages to compensate for the harm caused by the constitutional violations. The United States Supreme Court allowed Webster Bivens, a man who sued federal law enforcement officials for falsely arresting and physically abusing him in violation of his Fourth Amendment rights, to sue …

Compelled Speech And Proportionality, Alexander Tsesis

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This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled …

The Supreme Court And The People: Communicating Decisions To The Public, Barry Sullivan, Ramon Feldbrin

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Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

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Since 1963, the United States Supreme Court has recognized the constitutional right of entities and persons to pursue civil legal claims in American courts under the First Amendment right to petition government for redress of grievances. However, in a series of three cases decided by the Supreme Court in the early 1970’s - Boddie v. Connecticut, United States v. Kras and Ortwein v. Schwab - the Court inexplicably declined to address the appellants’ claims that they have a constitutional right to access the courts to seek resolution of their civil legal claims. In each of these three cases, the indigent …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

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This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

The Lost History Of Delegation At The Founding, Christine Chabot

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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 …

Covid-19 And American Democracy, Barry Sullivan

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This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.

Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry

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No abstract provided.

State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone

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State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 42 U.S.C. § 14141 to authorize the U.S. Attorney General to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (DOJ) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year and the Trump Administration has recently announced it would no longer enforce § 14141.

In response, a …

Confederate Monuments As Badges Of Slavery, Alexander Tsesis

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This Article develops a Thirteenth Amendment theory supporting the removal of Confederate symbols from government properties. It argues that such monuments to the Lost Cause are badges of slavery that should have no place in public squares.

The Article discusses how white supremacist groups, such as those who participated in the 2017 Unite the Right March in Charlottesville, effectively draw together around monuments honoring leaders and soldiers who fought for the cause of slavery. Relying on the Thirteenth Amendment's principles of freedom, States and municipalities can and should eliminate those monuments from their properties. Such policy initiatives communicate the government's …

A Constitutional Right To A Functioning United States Government? Are Governments Shutdowns Unconstitutional?, Allen E. Shoenberger

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No abstract provided.

Deliberate Democracy, Truth, And Holmesian Social Darwinism, Alexander Tsesis

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JUSTICE Oliver Wendell Holmes Jr.'s “marketplace of ideas” analogy continues to deeply influence First Amendment doctrine. It provides a rational substratum upon which the political or self-realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice's thought. He championed the spread of ideas and the political sway of majority opinions. That analytical insight is key to many of the Supreme Court's free speech precedents. On the one hand, the concept is invaluable for defending free discussions about philosophy, political science, the arts, humanities, pedagogy, and social sciences. In these areas, the …

Democratic Conditions, Barry Sullivan

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According to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who “represent” them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions …

Echoes Of Slavery Ii: How Slavery's Legacy Distorts Democracy, Juan F. Perea

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No abstract provided.

How The United States Supreme Court Diminished Constitutional Protections Of The Right To Vote And What Congress Can Do About It, Henry Rose

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No abstract provided.

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David Herzig

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In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of …

From Selma To Ferguson: The Voting Rights Act As A Blueprint For Police Reform, Stephen Rushin

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The Voting Rights Act of 1965 revolutionized access to the voting booth. Rather than responding to claims of voter suppression through litigation against individual states or localities, the Voting Rights Act introduced a coverage formula that preemptively regulated a large number of localities across the country. In doing so, the Voting Rights Act replaced reactive, piecemeal litigation with a proactive structure of continual federal oversight. As the most successful civil rights law in the nation's history, the Voting Rights Act provides a blueprint for responding to one of the most pressing civil rights problems the country faces today: police misconduct. …

Campus Speech And Harassment, Alexander Tsesis

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No abstract provided.

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

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Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act's § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

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This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Balancing Free Speech, Alexander Tsesis

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This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

Multifactoral Free Speech, Alexander Tsesis

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This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

Antisemitism And Hate Speech Studies, Alexander Tsesis

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No abstract provided.

Free Speech Constitutionalism, Alexander Tsesis

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In his Article, Professor Tsesis examines the three dominant normative rationales for free speech in the United States. In turn, he critiques the theories that free speech furthers democratic institutions, that free speech furthers personal autonomy, and, lastly, that free speech advances knowledge by perpetuating a marketplace of ideas. While Professor Tsesis finds much to recommend in each theory, he also finds each lacking. He concludes that the present theories are too narrow to describe the range of concerns encompassed by the First Amendment's Free Speech Clause. As such, Tsesis proposes that First

Amendment doctrine should reflect a general theory …

Doctrines Of Delusion: How The History Of The G.I. Bill And Other Inconvenient Truths Undermine The Supreme Court’S Affirmative Action Jurisprudence, Juan F. Perea

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No abstract provided.

Footholds Of Constitutional Interpretation, Alexander Tsesis

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No abstract provided.

Maxim Constitutionalism: Liberal Equality For The Common Good, Alexander Tsesis

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No abstract provided.

The United States Constitutional History Through The Barristers And Political Theories Of The Middle Temple Inn Of Court, Allen E. Shoenberger

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No abstract provided.