Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Constitutional Law

2016

Discipline
Institution
Publication

Articles 1 - 24 of 24

Full-Text Articles in Law

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis Dec 2016

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Faculty Publications & Other Works

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 about ...


Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary Nov 2016

Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary

Legal History Publications

This paper examines the United States Supreme Court case Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), which struck down Maryland’s licensing fee on wholesalers of imported goods. In doing so, the Court reaffirmed its commitment to a national economic policy, instead of a state-centric system. This paper explores the context of the decision, including profiles of the parties involved, the attorneys for both sides, the lower court decisions, and the majority opinion and dissent from the United States Supreme Court. Additionally, this paper follows the lineage of the case through to the present day, examining its ...


Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove Jul 2016

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.


The Right To Silence V. The Fifth Amendment, Tracey Maclin Mar 2016

The Right To Silence V. The Fifth Amendment, Tracey Maclin

Faculty Scholarship

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent ...


The First Amendment And The World, Timothy Zick Jan 2016

The First Amendment And The World, Timothy Zick

Popular Media

No abstract provided.


City Of Fernley V. State, Dep’T Of Tax, 132 Nev. Adv. Op. 4 (January 14, 2016), Daniel Ormsby Jan 2016

City Of Fernley V. State, Dep’T Of Tax, 132 Nev. Adv. Op. 4 (January 14, 2016), Daniel Ormsby

Nevada Supreme Court Summaries

The Court determined that the Local Government Tax Distribution Account under NRS § 330.660 was general legislation, survived rational basis scrutiny, and therefore was not unconstitutional under Article 4, Sections 20 and 21 of the Nevada Constitution.


Expanding Standing To Develop Democracy: Third Party Public Interest Standing As A Tool For Emerging Democracies, Aparna Polavarapu Jan 2016

Expanding Standing To Develop Democracy: Third Party Public Interest Standing As A Tool For Emerging Democracies, Aparna Polavarapu

Faculty Publications

Standing doctrine can play an outsized role in marginalized groups' ability to protect their constitutional rights. The cultural and political dynamics in developing countries routinely undermine the proper functions of the democratic system and make it unlikely that those parties most directly deprived of their rights will be heard by elected legislatures or be able to directly access courts. The vindication of their rights and the rule of law itself depend on the ability of others to litigate on their behalf. Thus, this article argues for the expansion of standing doctrine to protect the democratic ideal in emerging democracies. Using ...


The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig Jan 2016

The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig

Faculty Scholarship

None available.


Judicial Lobbying, Jonas Anderson Jan 2016

Judicial Lobbying, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

Abstract: Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done-not to mention little that could be done-to restrict judges from lobbying. Judicial lobbying occurs, in large part, when ...


Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey Jan 2016

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey

Law Faculty Scholarship

In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that donot target specific religious beliefs or practices. However ...


Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson Jan 2016

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson

Faculty Publications

In February 2016, the World Health Organization (WHO) declared a “public health emergency of international concern” due to the increased clusters of microcephaly, Guillain-Barré Syndrome, and other neurological disorders in areas affected by the Zika virus. That declaration came in the wake of the West Africa Ebola crisis. Back to back declarations by WHO of the highest threat level for an international public health emergency underscores how quickly pathogens can now spread and cause devastation across borders. It also highlights the need to implement lessons learned from each pandemic crisis without delay. These crises demonstrate that laws to curtail the ...


Balancing Free Speech, Alexander Tsesis Jan 2016

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

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 ...


The Power To Tax, Erik M. Jensen Jan 2016

The Power To Tax, Erik M. Jensen

Faculty Publications

The Power to Tax, chapter 1 in The Powers of the U.S. Congress: Where Constitutional Authority Begins and Ends, Brien Hallett, editor: Copyright © 2016 by ABC-CLIO LLC

This is a chapter in a book intended largely for an undergraduate audience. The chapter outlines the key terms necessary for understanding the congressional power to tax under the U.S. Constitution; the history and development of our understanding of that power; and the limitations (or possible limitations) on the power.


Intrastate Federalism, Rick Su Jan 2016

Intrastate Federalism, Rick Su

Journal Articles

In debates about the role of federalism in America, much turns on the differences between states. But what about divisions within states? The site of political conflict in America is shifting: battles once marked by interstate conflict at the national level are increasingly reflected in intrastate clashes at the local. This shift has not undermined the role of federalism in American politics, as many predicted. Rather, federalism's role has evolved to encompass the growing divide within states and between localities. In other words, federalism disputes — formally structured as between the federal government and the states — are increasingly being used ...


When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan Jan 2016

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have ...


The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler Jan 2016

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

All Faculty Scholarship

We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death ...


The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West Jan 2016

The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination.

Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever ...


What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells Jan 2016

What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells

Scholarly Works

As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan ...


Bordering The Constitution, Constituting The Border, Efrat Arbel Jan 2016

Bordering The Constitution, Constituting The Border, Efrat Arbel

Faculty Publications

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border ...


Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine Jan 2016

Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine

Scholarly Works

Societies are governed by codes of ethics. In developed societies, parts of these codes form a set of laws, enforceable by legal authorities, with or without assistance from the populace. At times, laws are crafted for the benefit of the powerful members of the society, ensuring preservation of their positions and property, while other constituents may ignore, actively disobey, or challenge laws they believe do not support their ethics. Developing and maintaining appropriate social norms is thus particularly critical for sustaining rapidly changing heterogeneous populaces.

The Internet, devised for the purpose of interconnecting diverse computer networks of research and educational ...


Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski Jan 2016

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we ...


Twenty-Week Abortion Statutes: Four Arguments, Randy Beck Jan 2016

Twenty-Week Abortion Statutes: Four Arguments, Randy Beck

Scholarly Works

The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has ever offered a rationale for the viability rule, and the arguments recited in non-majority opinions are either conclusory or fail to distinguish viability from earlier lines that might be drawn. The most coherent academic attempt to justify the rule — Professor Laurence Tribe’s argument that a woman can “transfer nurture of [a viable] fetus to other hands” — rests on the erroneous assumption that a pregnant woman can arrange for premature delivery of any ...


The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler Jan 2016

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such ...


Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon Jan 2016

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.