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Articles 1 - 30 of 117
Full-Text Articles in Law
The Story Of New York Times V. Sullivan: How Free Speech Rights Were Intertwined With The Civil Rights Movement, Samantha Barbas
The Story Of New York Times V. Sullivan: How Free Speech Rights Were Intertwined With The Civil Rights Movement, Samantha Barbas
ConLawNOW
This essay, delivered to the Law Library of Congress as the 2023 Constitution Day Lecture, tells the story of New York Times v. Sullivan, widely regarded as one the most important First Amendment decisions of all time. It is a decision that has profoundly affected the workings of the press and shaped the contours of public discourse in the United States. And it is a decision that continues to raise controversy because of the broad protections it gives to freedom of speech at the expense of other rights such as reputation and privacy. The essay summarizes the author’s work …
Symposium: Gender, Health And The Constitution: The Misalignment Of Medical Capacity And Legal Competence For Perinatal People With Serious Mental Illness, Melisa Olgun, Carlos Larrauri, Sonja Castaneda-Cudney, Elyn Saks
Symposium: Gender, Health And The Constitution: The Misalignment Of Medical Capacity And Legal Competence For Perinatal People With Serious Mental Illness, Melisa Olgun, Carlos Larrauri, Sonja Castaneda-Cudney, Elyn Saks
ConLawNOW
This Article evaluates the misalignment of medical capacity and legal competence for perinatal people with serious medical illnesses (SMI), an issue that has had limited discourse in legal academia. It delineates the contours of these concepts, dissecting their theoretical underpinnings and practical applications. While medical capacity is often considered an iterative, context-specific determination, legal competence is typically treated as a rigid, binary legal categorization. It then illustrates how the disparate scope and aims of capacity and competence lead to a precarious misalignment for people with fluctuating mental states, particularly perinatal people with SMI. The Article proposes solutions to harmonize the …
Symposium: Gender, Health, And The Constitution: Gender-Affirming Care And Children's Liberty, Dara E. Purvis
Symposium: Gender, Health, And The Constitution: Gender-Affirming Care And Children's Liberty, Dara E. Purvis
ConLawNOW
This essay addresses the wave of statutes banning gender-affirming care for transgender and gender-diverse minors passed in states across the country over the last three years. It argues that an underdeveloped understanding of children’s rights makes it more difficult to explain how harmful gender-affirming care bans are and to challenge them in court. After explaining the nature of gender-affirming care, the essay discusses the grounds underlying existing challenges to gender-affirming care bans, highlighting the emphasis on equal protection and parental rights. It concludes by reframing the children’s liberty argument and exploring what the broader consequences of courts recognizing such a …
Beyond The Ban: One Major Challenge Facing The Ftc Non-Compete Rule, Brendan Mohan
Beyond The Ban: One Major Challenge Facing The Ftc Non-Compete Rule, Brendan Mohan
ConLawNOW
This article analyzes the implications of President Biden's Executive Order 14036 and the subsequent notice of proposed rulemaking (NPRM) by the Federal Trade Commission (FTC) to ban non-compete agreements. It examines the legal basis for the NPRM, including Sections 5 and 6(g) of the FTC Act, and anticipates potential challenges to its implementation, most notably under the major questions doctrine. It explores the broader ramifications of the NPRM for labor and employment law, emphasizing its potential to reshape administrative agency regulation and the regulatory landscape. It concludes by analyzing the rule under the major questions doctrine and the possible outcomes …
Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken
Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken
ConLawNOW
This essay explores the dehumanizing potential of metaphors used to describe women’s reproductive biology through literary analysis of Margaret Atwood’s canonical feminist novel The Handmaid’s Tale (1985). Attending to the rhetoric that both justifies and contests ritualized rape and forced surrogacy in Atwood’s novel, this essay begins by interrogating the ubiquitous cultural and biomedical metaphors that reduce women and pregnant people to their bodies’ reproductive potential. The first section draws from scholarship in medical anthropology, medical rhetoric, and literary studies to illuminate how gendered stereotypes pervade biomedical, cultural, and legal representations of reproduction, reifying the conflation of women and people …
Symposium; Gender, Health, And The Constitution: Hysteria Redux: Gaslighting In The Age Of Covid, Jane Campbell Moriarty
Symposium; Gender, Health, And The Constitution: Hysteria Redux: Gaslighting In The Age Of Covid, Jane Campbell Moriarty
ConLawNOW
This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers …
Symposium: Gender, Health, And The Constitution: The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah L. Brake
Symposium: Gender, Health, And The Constitution: The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah L. Brake
ConLawNOW
This essay considers the role of sport in the new gender panic of legislative activity targeting transgender individuals, which now extends into health and family governance. Sport was one of the first settings—the gateway—to ignite the current culture war on transgender youth. This analysis examines how Title IX of the Education Act of 1972, the popular law responsible for the growth of opportunities for girls and women in sports, has been mobilized in service of a broader gender agenda. Far from providing a persuasive justification for the state laws banning transgender girls from girls’ sports, Title IX, properly understood, supports …
Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble
Book Review: Rearranging The Apple Cart: Good-Faith Originalism And The Fourteenth Amendment, Daniel Coble
ConLawNOW
This essay reviews the book by Randy Barnett and Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021). Ask any constitutional law professor about how judges should or do interpret the Constitution, and you will likely hear an answer that ends in “ism.” In their latest book, Professors Randy Barnett and Evan Bernick discuss an “ism” that is found in our nation’s highest court, state courts, and academia: originalism. No matter which constitutional interpretation “ism” that one follows, this book provides an intimate and historical view of what two leading originalist scholars believe is the …
The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman
The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman
ConLawNOW
This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …
Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena
Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena
ConLawNOW
This essay discusses the murkiness in the law regarding the application of the Self-Incrimination Clause as it relates to modern technology of smartphones. It evaluates the pros and cons of a judicial solution to the existing conflict against a legislative solution. Rather than through regulation or statutory reform, the focus will be on the need for a contemporary judicial interpretation of the Self-Incrimination Clause in furtherance of the common law tradition that spawned the first understandings of the Fifth Amendment. Ultimately, this examination will call upon the Supreme Court to craft a modern application of the Self-Incrimination Clause by holding …
Abortion Rights And Federalism: Some Lessons From The Nineteenth Century United States, Kate Masur
Abortion Rights And Federalism: Some Lessons From The Nineteenth Century United States, Kate Masur
ConLawNOW
The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has prompted frequent allusions to slavery and the antebellum United States. The history of those struggles reminds us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights. The history of the United States in the nineteenth century …
Symposium: The Future Of Reproductive Rights: Dobbs And Unenumerated Parental Custody Rights And Interests, Jeffrey A. Parness
Symposium: The Future Of Reproductive Rights: Dobbs And Unenumerated Parental Custody Rights And Interests, Jeffrey A. Parness
ConLawNOW
This article addresses issues involving custodial parents after Dobbs. It first briefly describes the federal constitutional right to an interest in custodial parentage under pre-Dobbs U.S. Supreme Court precedents. It finds few precedents on defining parents at birth and no precedents on defining parentage arising from post-birth acts. The paper then reviews Dobbs, particularly its varying takes on unenumerated constitutional rights. Finally, it explores how Dobbs should influence future precedents on federal constitutional custodial parentage that arises either at birth or after birth. It urges federal courts to expand custodial parentage in light of societal changes in …
Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo
Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo
ConLawNOW
This essay considers current claims for prenatal personhood after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It first explains how the Dobbs decision unnecessarily adopts a binary view of prenatal life, suggesting that the only option for courts and legislatures is to recognize prenatal personhood or deny protection for prenatal life. This ignores popular understandings that certain laws can and should protect prenatal life, especially where criminal or tortious actions are concerned, but not grant full legal personhood. The Dobbs decision also refused to draw meaningful lines about the value of prenatal life in …
Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill
Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill
ConLawNOW
After the Supreme Court’s reversal of Roe v. Wade, the question of a constitutional right to abortion goes to state courts where there is a potential for resurgence of a Roe-like standard. This Essay thus evaluates whether Roe’s doctrinal framework is worth resurrecting, and concludes that it is good law to retain. It criticizes the work of liberal legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cited …
Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli
Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli
ConLawNOW
This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been …
Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry
Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry
ConLawNOW
This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law.
Book Review: Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown
Book Review: Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown
ConLawNOW
This review summarizes the key thesis of the book, The Nation That Never Was, which argues for a reset of the Constitutional baseline of principles. The book argues that the Gettysburg Address should be considered a key part of modern constitutional guarantees of equality and liberty. The review explains this thesis, and notes the questions it leaves open.
Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh
ConLawNOW
Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …
Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus
Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus
ConLawNOW
The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe …
Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness
Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness
ConLawNOW
Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman
ConLawNOW
Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: The Precarity Of Justice Kennedy's Queer Canon, Kyle C. Velte
Symposium: Sexual Orientation, Gender Identity, & The Constitution: The Precarity Of Justice Kennedy's Queer Canon, Kyle C. Velte
ConLawNOW
This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Business Owners' Religious Objections To Same-Sex Marriage: The American Versus European Perspective, Lenka Křičková
ConLawNOW
This Article focuses on the Lee v. Ashers Baking Company case from the Supreme Court of the United Kingdom, a decision similar to that of the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Both cases involved bakers whose religious objections to same-sex marriage led them to refuse to sell cakes to gay customers. The Article discusses several common ideas appearing in these cases, mainly the need to distinguish between the message and the messenger when applying antidiscrimination law and the role of fundamental rights in the assessment. Based on this analysis, the Article then suggests …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Suspect Classifications, Immutability, And Moral Responsibility, Michael Gentithes
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Suspect Classifications, Immutability, And Moral Responsibility, Michael Gentithes
ConLawNOW
This essay argues that when LGBTQ advocates raise equal protection arguments, they should resist the temptation to make immutability claims. Instead, they should acknowledge greater flexibility in the continuum of sexual orientation and gender identity, thereby avoiding traditional and binary immutability theory, and emphasize the lack of moral responsibility as a ground for strict scrutiny. Such arguments offer more traction for future cases rather than repeated efforts to suggest that sexuality is biologically determined or unalterable. This approach shifts the legal focus to the moral responsibility logic that lies behind traditional immutability theory, which may ultimately be more persuasive to …
Symposium: Sexual Orientation, Gender Identity & The Constitution: The Public Accommodations Dilemma - Whose Right Prevails, Meg Penrose
ConLawNOW
This essay gives a brief history of religious liberty-based objections to public accommodations law promoting societal integration and provides a potential solution. It argues there are parallels between LGBTQ discrimination and race discrimination, including the continued resistance to full integration and equality. The essay suggests a potential solution to the public accommodations dilemma between anti-discrimination and religious liberty in redefining the scope of religious liberty. Courts should protect religious services and activities—not secular services and activities. The status (religious or secular) of the person providing services should be irrelevant. The focus of public accommodations laws, and legal challenges to these …
Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes
Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes
Con Law Center Articles and Publications
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will be remembered primarily for its destabilizing effect on abortion rights across the country; in its wake, the legality of abortions performed in various states and at various stages of pregnancy was thrown into turmoil that will take years to resolve. In Dobbs’s immediate aftermath, substantive due process jurisprudence has been at least destabilized, if not prepared for greater limitation in the terms to come. But the Court’s approach to that line of cases has also turned stare decisis doctrine into an unclear jumble that may be considered …
Appealable Tros, Bernadette Bollas Genetin
Appealable Tros, Bernadette Bollas Genetin
Con Law Center Articles and Publications
It’s textbook law that temporary restraining orders (TROs) are not appealable. That bright-line rule, however, has never told the whole story. Today, a majority of circuit courts permit appeal of TROs in narrow instances when, for instance, the TRO has the practical effect of an injunction, threatens serious or irreparable injury, and can only be reviewed effectively by immediate appeal. This accords with the Supreme Court’s conclusion in Carson v. American Brands, Inc., which permitted limited appeal of orders that, like TROs, are not express injunctions but may threaten the same irreparable injury as an injunction. The Carson Court emphasized …
Reviving The Poll Tax: Voter Id And Debt Laws, Cynthia Boyer
Reviving The Poll Tax: Voter Id And Debt Laws, Cynthia Boyer
ConLawNOW
In the United States, disenfranchisement is deeply rooted in history as a form of punishment—a dual penalty. In the late nineteenth century, the poll tax first emerged to restrict voting and limit the expansion of suffrage to Black men. Primarily aimed at minorities, these laws on disenfranchisement became a significant barrier to U.S. ballot boxes. Even though the poll tax was finally outlawed in federal elections in 1964, nowadays it takes another subtle form through the prism of voter identification laws. Thirty-five states currently have voter ID laws, with varying criteria and accepted forms of documentation, thus requesting or requiring …
Book Talk: The Cult Of The Constitution, Mary Anne Franks
Book Talk: The Cult Of The Constitution, Mary Anne Franks
ConLawNOW
In this essay based on remarks delivered as the 2020 Constitution Day lecture at the Center for Constitutional Law, Professor Franks previews her book, The Cult of the Constitution. It addresses Franks’ key thesis about fundamentalist approaches to legal texts and Constitution, which read texts in selective and self-interested ways that verify a particular world view and ignore interpretations or passages that complicate it. Her work highlights debates over guns and the Second Amendment and Black Lives Matter protests and the First Amendment as examples of this problematic constitutional fundamentalism. Instead, the book and essay point to the Fourteenth …
Justice Gorsuch's Choice: From Bostock V. Clayton County To Dobbs V. Jackson Women's Health Organization, Marc Spindelman
Justice Gorsuch's Choice: From Bostock V. Clayton County To Dobbs V. Jackson Women's Health Organization, Marc Spindelman
ConLawNOW
Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling …