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Articles 1 - 30 of 141
Full-Text Articles in Law
State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter
State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.
This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect …
The Wolf In Sheep's Clothing: How Historical And Blight Designations In The Absence Of Constitutional Safeguards Can Render Property Rights Illusory, Kyle B. Teal, Dane L. Stuhlsatz
The Wolf In Sheep's Clothing: How Historical And Blight Designations In The Absence Of Constitutional Safeguards Can Render Property Rights Illusory, Kyle B. Teal, Dane L. Stuhlsatz
St. Thomas Law Review
This article summarily analyzes those more subtle forms of property rights infringement, including historical designations and blight designations, and it critiques laws in place that purport to grant local government the authority to assert such designations. This article also provides a summary of the causes of action owners aggrieved by unjust designations could bring in response, and critiques the flaws in those elective safeguards, which are prevalent even in property rights friendly jurisdictions such as Florida. It then proposes high-level solutions to enact legislation to limit fee exposure for property owners who bring inverse condemnation actions and Bert J. Harris …
State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield
State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield
UF Law Faculty Publications
By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …
The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.
Some Observations On Separation Of Powers And The Wisconsin Constitution, Chad M. Oldfather
Some Observations On Separation Of Powers And The Wisconsin Constitution, Chad M. Oldfather
Marquette Law Review
In recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
St. Mary's Law Journal
During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …
Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros
Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros
Northwestern Journal of Law & Social Policy
This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools.
Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to …
Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros
Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros
Journal Articles
This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools. Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
Table of Contents and Special Thanks.
The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller
The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller
Faculty Scholarship
Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …
The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.
This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …
Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns
Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns
Seattle University Law Review SUpra
No abstract provided.
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
Dickinson Law Review (2017-Present)
It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …
Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott
Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott
William & Mary Law Review
The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations of …
Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock
Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock
William & Mary Bill of Rights Journal
Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …
Disuniformity Of Federal Constitutional Rights, Joseph Blocher
Disuniformity Of Federal Constitutional Rights, Joseph Blocher
Faculty Scholarship
Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.
Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not …
Narrowly Tailoring The Covid-19 Response, Craig Konnoth
Narrowly Tailoring The Covid-19 Response, Craig Konnoth
Publications
No abstract provided.
Forgotten Limits On The Power To Amend State Constitutions, Jonathan L. Marshfield
Forgotten Limits On The Power To Amend State Constitutions, Jonathan L. Marshfield
Northwestern University Law Review
There seem to be no limits on what can pass through state constitutional amendment procedures. State amendments have targeted vulnerable minorities, deeply entrenched specific fiscal strategies, and profoundly restructured institutions. The malleability of state constitutions is significant because in many states there are legitimate fears that special interests dominate amendment politics, and that fundamental change is occurring with minimal opportunities for constructive deliberation or inclusive participation. The state doctrine of “referendum sovereignty” is a key condition fueling this dynamic. The doctrine holds that there are no substantive limits on any state amendment processes so long as amendments comply with federal …
Establishment Of Religion Supreme Court Appellate Division Third Department
Establishment Of Religion Supreme Court Appellate Division Third Department
Touro Law Review
No abstract provided.
Due Process Supreme Court Rockland County
Due Process Supreme Court Appellate Division Third Department
Due Process Supreme Court Appellate Division Third Department
Touro Law Review
No abstract provided.
Due Process Supreme Court Appellate Division Second Department
Due Process Supreme Court Appellate Division Second Department
Touro Law Review
No abstract provided.
Due Process Supreme Court Appellate Division
Due Process Pringle V. Wolfe (Decided 28, 1996)
Due Process Pringle V. Wolfe (Decided 28, 1996)
Touro Law Review
No abstract provided.
Due Process People V. Scott (Decided June 5, 1996)
Due Process People V. Scott (Decided June 5, 1996)
Touro Law Review
No abstract provided.
Double Jeopardy Supreme Court Appellate Division Second Department
Double Jeopardy Supreme Court Appellate Division Second Department
Touro Law Review
No abstract provided.