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Full-Text Articles in Law

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


Book Review: Half American, Half Amazing: A Review Of Half American By Matthew F. Delmont And An Exploration Of Executive Action During World War Ii And Its Impact On Black Soldiers, Ainslee Johnson-Brown Jan 2023

Book Review: Half American, Half Amazing: A Review Of Half American By Matthew F. Delmont And An Exploration Of Executive Action During World War Ii And Its Impact On Black Soldiers, Ainslee Johnson-Brown

ConLawNOW

This essay reviews Matthew F. Delmont’s new book, Half American: The Epic Story of African Americans Fighting World War II at Home and Abroad (2022). The book enriches the ongoing scholarship related to critical race theory and the effects of executive action on the lived experience of Black Americans. Delmont presents a well-woven narrative of the experience of Black American soldiers during World War II. Pieced together from letters, court documents, and articles published during the war, this book sheds light on accounts previously buried beneath a shield of trauma, frustration, and disbelief.


Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky Jan 2023

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …


Freeze-Frames And Blanket Bans: The Unconstitutionality Of Prisons’ Denial Of Gender Confirmation Surgery To Transgender Inmates, Aranda Stathers Dec 2022

Freeze-Frames And Blanket Bans: The Unconstitutionality Of Prisons’ Denial Of Gender Confirmation Surgery To Transgender Inmates, Aranda Stathers

Dickinson Law Review (2017-Present)

It is long established that the Eighth Amendment’s prohibition against imposing cruel and unusual punishments requires prisons to adequately address their inmates’ medical needs. Inmates identifying with the LGBTQ+ community are not exempt from this constitutional mandate. Trans inmates with gender dysphoria require specific treatment, including, but not limited to, gender confirmation surgery. While courts acknowledge that prisons owe a duty to provide some transition-related care, the extent of that duty remains contested. With no guidance from Congress or the Supreme Court, the constitutionality of prisons’ denial of gender confirmation surgery is in the hands of the circuit courts, which …


Dangerous And Unusual: How An Expanding National Firearms Act Will Spell Its Own Demise, Oliver Krawczyk Dec 2022

Dangerous And Unusual: How An Expanding National Firearms Act Will Spell Its Own Demise, Oliver Krawczyk

Dickinson Law Review (2017-Present)

The National Firearms Act of 1934 (NFA) is the strictest federal gun control law currently in effect. It criminalizes the mere possession and transfer of specifically enumerated categories of firearms deemed to be especially dangerous and unusual, such as machine guns and silencers. Commensurate with this viewpoint, the NFA imposes on violators harsh felony penalties, from lengthy prison sentences to six-figure fines. However, the NFA permits lawful civilian ownership of these firearms under a taxation and registration scheme administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In its 2008 District of Columbia v. Heller decision, the United …


Symposium: The Future Of Reproductive Rights: Perilous Private Enforcement Strategies: From Posses And Citizen's Arrest To Texas Heartbeat Statutes, Jennifer A. Brobst Dec 2022

Symposium: The Future Of Reproductive Rights: Perilous Private Enforcement Strategies: From Posses And Citizen's Arrest To Texas Heartbeat Statutes, Jennifer A. Brobst

ConLawNOW

The utility of state private enforcement statutes restricting abortion in Texas and other states is worthy of close scrutiny. Placing private enforcement in historical context aids in understanding when it may be a sustainable strategy. First, the strategy of involving the populace in the enforcement of legislative mandates has a long history in the United States. Self-help is a necessity where law enforcement is not equipped to prevent and respond to every call for assistance. Citizen’s arrest, posse comitatus, and mandatory reporting of misconduct by citizens, including professional misconduct, all involve private action for the common good in state and …


Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee Dec 2022

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …


Symposium: The Future Of Reproductive Rights: Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes Nov 2022

Symposium: The Future Of Reproductive Rights: Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

ConLawNOW

This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s …


Provisions Of Authenticity Under The Jordanian Constitutional Court Rulings And Their Implications: A Comparative Study, Dr. Shatha A. Al-Assaf Nov 2022

Provisions Of Authenticity Under The Jordanian Constitutional Court Rulings And Their Implications: A Comparative Study, Dr. Shatha A. Al-Assaf

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The importance of constitutional judiciary derives from its major role in exercising control over the constitutionality of laws; thereby providing a strong fence protecting the provisions of the Constitution as the supreme legislation in the State. The judgments issued by Constitutional Courts and the authenticity they enjoy along with the impacts incurred constitute ones of the most important topics which should receive major attention and deliberation. This research has concentrated on the authenticity of the judgments of the Jordanian Constitutional Court and their impacts on the Jordanian Law, and on comparing such judgments to those of the Egyptian Law. The …


Thomas Aquinas On Tyrannicide, Dr. Charles J. Reid Jr. Aug 2022

Thomas Aquinas On Tyrannicide, Dr. Charles J. Reid Jr.

University of St. Thomas Law Journal

No abstract provided.


Covid-19, Churches, And Culture Wars, John Inazu Aug 2022

Covid-19, Churches, And Culture Wars, John Inazu

University of St. Thomas Law Journal

No abstract provided.


The Next Fight Over Guns In America, Timothy Zick, Diana Palmer Jun 2022

The Next Fight Over Guns In America, Timothy Zick, Diana Palmer

Popular Media

With Thursday’s Supreme Court decision [in New York State Rifle & Pistol Association Inc. v. Bruen], the only real remaining question is not whether Americans can carry firearms, but where.


Disentangling Textualism And Originalism, Katie Eyer Jun 2022

Disentangling Textualism And Originalism, Katie Eyer

ConLawNOW

Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles.

In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities …


Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson Jun 2022

Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson

Articles & Chapters

This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize …


"The Special Favorite Of The Laws"? Black Lives Matter Moments In American Constitutional And Legal History, Dr. Yohuru Williams May 2022

"The Special Favorite Of The Laws"? Black Lives Matter Moments In American Constitutional And Legal History, Dr. Yohuru Williams

University of St. Thomas Law Journal

No abstract provided.


Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi Apr 2022

Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi

ConLawNOW

This Article details the Texas litigation on abortion rights in and out of the U.S. Supreme Court in 2021 and its implications for the future of constitutional rights. The litigation focused primarily on procedural issues like standing and sovereign immunity that prevented the plaintiffs’ claims of violation of fundamental constitutional rights to proceed to their merits. Such procedural doctrines have become a powerful tool in the hands of the Supreme Court used to control social and economic development. Thus procedure, originally conceived as the handmaid of justice, has become one of its main antagonists. This Article argues against such abuses …


The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor Apr 2022

The Constitutionality Of The Title Ix Religious Exemption, Madelyn Jacobsen, Rebecca Batty, Editor

Brigham Young University Prelaw Review

Petitioners in Hunter v. Department of Education questioned the constitutionality of the Title IX religious exemption as the basis of their 2021 class-action lawsuit. They claimed that more than 30 religious schools maintained discriminatory policies against LGBTQ students under the exemption. The religious exemption, often painted as unconstitutional discrimination, permits religious schools' adherence to sincerely held religious beliefs—and promotes a distinctive religious education that secular schools lack. This paper examines legal precedents relevant to religious freedom, higher education, and discrimination that demand the Title IX religious exemption remains in effect.


Recovering The Lost General Welfare Clause, David S. Schwartz Feb 2022

Recovering The Lost General Welfare Clause, David S. Schwartz

William & Mary Law Review

The General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for …


The Constitutional Right To Carry Firearms On Campus, Jared A. Tuck Feb 2022

The Constitutional Right To Carry Firearms On Campus, Jared A. Tuck

William & Mary Law Review

Do individuals have the fundamental right under the Second Amendment to carry firearms on the campus of a public university? Additionally, can a public university totally ban firearms on its campus without impeding on the constitutional right to keep and bear arms protected by the Second Amendment? This Note will argue that individuals have a narrow, but constitutionally guaranteed, right to carry firearms on the campus of a public university. Therefore, it is beyond the power of states and public universities to totally ban firearms from campus premises.


Muskrat Textualism, Matthew L.M. Fletcher Jan 2022

Muskrat Textualism, Matthew L.M. Fletcher

Northwestern University Law Review

The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to …


Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung Jan 2022

Freedom To Morph? An Analysis Of Morphed Imagery, Child Pornography, And The First Amendment, Katie H. Jung

Catholic University Journal of Law and Technology

This article examines the current law related to child pornography and how it leaves a gap for morphed imagery to flourish. The jurisprudence in this area is insufficient to keep up with the changing technology which allows children to be portrayed in morphed imagery and argues that this should not fall within First Amendment protection. The Supreme Court has made it clear that protecting children is an exceedingly important interest and that traditional child pornography falls outside of what was traditionally considered to be protected First Amendment speech. This article argues that the Circuit Split, should the Supreme Court take …


Compelled Speech And Proportionality, Alexander Tsesis Jan 2022

Compelled Speech And Proportionality, Alexander Tsesis

Faculty Publications & Other Works

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 …


Medication Abortion Exceptionalism, Greer Donley Jan 2022

Medication Abortion Exceptionalism, Greer Donley

Articles

Restrictive state abortion laws garner a large amount of attention in the national conversation and legal scholarship, but less known is a federal abortion policy that significantly curtails access to early abortion in all fifty states. The policy limits the distribution of mifepristone, the only drug approved to terminate a pregnancy so long as it is within the first ten weeks. Unlike most drugs, which can be prescribed by licensed healthcare providers and picked up at most pharmacies, the Food and Drug Administration only allows certified providers to prescribe mifepristone, and only allows those providers to distribute the drug to …


Disaggregating Legislative Intent, Jesse M. Cross Jan 2022

Disaggregating Legislative Intent, Jesse M. Cross

Faculty Publications

In statutory interpretation, theorists have long argued that the U.S. Congress is a “they,” not an “it.” Under this view, Congress is plural and nonhierarchical, and so it is incapable of forming a single, institutional intent. Textualists contend that this vision of Congress means interpreters must move away from concerns about intent altogether, and that they instead should speak in the register of textualism and its associated constitutional values, such as notice and congressional incentivization.

However, even if legislators’ intentions never coalesce into an institutional intent, a disaggregated-intent theory of legislation remains possible. Under this theory, statutes are understood as …


Trade's Mini-Deals, Kathleen Claussen Jan 2022

Trade's Mini-Deals, Kathleen Claussen

Articles

The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only …


Post-Conviction Release And Defacto Double Jeopardy: Making The Case For Felons As A Quasi-Suspect Class Due To The Collateral Consequences Of A Felony Conviction Jan 2022

Post-Conviction Release And Defacto Double Jeopardy: Making The Case For Felons As A Quasi-Suspect Class Due To The Collateral Consequences Of A Felony Conviction

Florida A & M University Law Review

Felons are a prime example of a sub-class of individuals that, once convicted in a court of law, are classified, punished, stigmatized, stripped of their rights as American citizens, and discriminated against. Could this be a form of De Facto double jeopardy? While felons are not literally subjected to a second trial within the judicial system for the same offense, felons face a pseudo trial with society, as its jury, upon re-entry into society, based on the continual discrimination for crimes they have already served time for. The enactment of discriminatory laws against felons dehumanizes the individual by discarding their …


The (White) Washing Of American History Jan 2022

The (White) Washing Of American History

Florida A & M University Law Review

In 2019, the New York Times Magazine released a special issue of its magazine, called the 1619 Project, entirely dedicated to reframing the founding of America and placing the consequences of slavery and the contributions of Black Americans as central to America. The 1619 Project quickly became a national lightning rod—the book version of the project reached the top 100 on the bestseller lists of Amazon.com and Barnes&Noble.com more than a month before its release date, and several states responded by banning the teaching of The 1619 Project in schools. Bans on teaching The 1619 Project have erroneously referred to …


When Patients Are Their Own Doctors: Roe V. Wade In An Era Of Self-Managed Care, Yvonne F. Lindgren Jan 2022

When Patients Are Their Own Doctors: Roe V. Wade In An Era Of Self-Managed Care, Yvonne F. Lindgren

Faculty Works

The Supreme Court in Roe v. Wade framed the abortion right as a right to make the abortion decision in consultation with a “responsible physician.” Under this framing, doctors were cast in the role of medical “gatekeepers” to mediate patient access to abortion. In the ensuing years, the doctor-patient relationship has become the site of restrictive abortion regulations in many states. This Article argues that Roe’s framing suffers from a foundational flaw: While the gatekeeper framing may have been appropriate in the Roe era when abortion was surgical and non-clinical abortions were potentially lethal, today, medication abortion—a two-drug non-surgical regimen …


Table Of Contents Jan 2022

Table Of Contents

Seattle University Law Review

Table of Contents


The Stubborn Survival Of The Central Hudson Test For Commercial Speech, Nat Stern Jan 2022

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. …