The Future Of The Foreign Commerce Clause, 2019 Louisiana State University Law Center
The Future Of The Foreign Commerce Clause, Scott Sullivan
The Foreign Commerce Clause has been lost, subsumed by its interstate cousin, and overshadowed in foreign relations by the treaty power. Consistent with its original purpose and the implied, but unrefined view asserted by the judiciary, this Article articulates a broader and deeper Foreign Commerce power than is popularly understood. It reframes doctrinal considerations for a reinvigorated Foreign Commerce Clause— both as an independent power and in alliance with other coordinate foreign affairs powers—and demonstrates that increasing global complexity and interdependence makes broad and deep federal authority under this power crucial to effective and efficient action in matters of ...
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, 2019 Louisiana State University Law Center
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy
No abstract provided.
Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield
Boston College Law School Faculty Papers
This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance ...
Forgotten Cases: Worthen V. Thomas, 2019 Cleveland-Marshall College of Law
Forgotten Cases: Worthen V. Thomas, David F. Forte
David F. Forte
According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only after ...
Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, 2019 Fordham University School of Law
Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale
Fordham Law Review
In 1948, Congress enacted 28 U.S.C. § 2255, which authorizes a motion for federal prisoners to “vacate, set aside or correct” their sentences, with the goal of improving judicial efficiency in collateral review. Section 2255(e), known as the “savings clause,” allows federal inmates to challenge the validity of their imprisonments with writs of habeas corpus if § 2255 motions are “inadequate or ineffective to test the legality of [their] detention[s].” Due to the U.S. Supreme Court’s and Congress’s silence regarding what suffices as “inadequate or ineffective,” the circuit courts have adopted varied standards. The Sixth ...
Bloody Hell: How Insufficient Access To Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, 2019 Texas A&M University School of Law
Bloody Hell: How Insufficient Access To Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, Lauren Shaw
Texas A&M Law Review
For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and ...
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, 2019 Chapman University School of Law
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Texas A&M Law Review
The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to ...
Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, 2019 University of San Diego
Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti
San Diego Law Review
The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.
The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, 2019 University of San Diego
The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, George Rutherglen
San Diego Law Review
Procedure aspires to lofty goals: fairness, efficiency, and speedy adjudication, or so says Rule 1. The rule states the aims of the Federal Rules of Civil Procedure in admirably succinct terms: “They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Who could oppose any of these goals? Yet for all its virtues as a concise summary of what the Federal Rules seek to achieve, this provision cannot be taken literally as a guide to interpretation. The goals it aspires to are, on even a cursory examination, deeply inconsistent with each ...
Withdrawing From Nafta, 2019 West Virginia University College of Law
Withdrawing From Nafta, Alison Peck
Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to ...
Henry V. Nev. Comm'n On Judicial Discipline, 135 Nev. Adv. Op. 5 (Feb. 28, 2019) (En Banc), 2019 University of Nevada, Las Vegas -- William S. Boyd School of Law
Henry V. Nev. Comm'n On Judicial Discipline, 135 Nev. Adv. Op. 5 (Feb. 28, 2019) (En Banc), James Puccinelli
Nevada Supreme Court Summaries
The Court held that NRS § 1.428 is constitutional. Thus, hearing masters are subject to the Nevada Commission on Judicial Discipline’s jurisdiction.
Universal Human Rights And Constitutional Change, 2019 Santa Clara University
Universal Human Rights And Constitutional Change, David Sloss, Wayne Sandholtz
University of Southern California Legal Studies Working Paper Series
Many Americans believe that the United States has a tradition of federal constitutional protection for fundamental human rights, dating back to adoption of the Bill of Rights in 1791. That belief is mostly wrong. For most of U.S. history, protection for fundamental rights depended primarily on state law, not federal law. This article documents the transfer of regulatory authority over human rights from the states to the federal government, which we call the “federalization” of human rights. Before 1930, state governments exercised primary or exclusive regulatory authority for most fundamental rights. Federalization occurred in two phases: from 1930 to ...
The Interdependent Relationship Of A Free Press And An Independent Judiciary In A Constitutional Democracy, 2019 McDermott Will & Emery
The Interdependent Relationship Of A Free Press And An Independent Judiciary In A Constitutional Democracy, Robert J. Cordy
Boston College Law Review
For nearly 240 years, we have recognized, at least constitutionally, that it is essential to the very existence of a constitutional democracy that there be an independent judiciary and a free press. What is not often appreciated is how dependent these two vital institutions are upon each other. Certainly, judges and journalists rarely think in such terms. But events occurring at home and around the world in fledgling and failing democracies should heighten our awareness and appreciation for their interdependence, and help us better understand the liberties and fundamental rights they protect.
Trump V. Hawaii: Dissecting The Controversy Over Presidential Immigration Policies, 2019 University of Cincinnati College of Law
Trump V. Hawaii: Dissecting The Controversy Over Presidential Immigration Policies, Paul Taske
Immigration and Human Rights Law Review
No abstract provided.
Peace Cross Op-Ed Feb 2019.Pdf, 2019 Widener Law
Peace Cross Op-Ed Feb 2019.Pdf, Alan E. Garfield
Alan E Garfield
No abstract provided.
Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, 2019 University of Arkansas, Fayetteville
Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby
Arkansas Law Review
The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the ...
Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, 2019 University of Arkansas, Fayetteville
Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth
Arkansas Law Review
Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Almost certainly, the vast majority of voters did so without reading or understanding the intricacies of the initiative, and instead voted simply to affirm their desire to permit the medical use of marijuana in the state. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in ...
The Constitutional Rights Of Advanced Robots (And Of Human Beings), 2019 Indiana University
The Constitutional Rights Of Advanced Robots (And Of Human Beings), R. George Wright
Arkansas Law Review
Constitutional rights create and destroy otherwise available options for the rights-bearer, for governments, and for affected third parties. Thus, conferring a constitutional right always requires at least some minimal defense. But conferring a constitutional right can certainly be appropriate if the recipient of the right seems to deserve or otherwise qualify for the right in question, or if conferring the right makes sense on other, perhaps partly pragmatic, grounds.
The Thirteenth Amendment, Prison Labor Wages, And Interrupting The Intergenerational Cycle Of Subjugation, 2019 Seattle University School of Law
The Thirteenth Amendment, Prison Labor Wages, And Interrupting The Intergenerational Cycle Of Subjugation, Josh Halladay
Seattle University Law Review
This Comment argues that meager or no compensation for prisoners, who are disproportionately black and other persons of color, entraps them and their children in a cycle of subjugation that dates back to the days of slavery, and this Comment proposes to interrupt this cycle by setting a minimum wage for prisoners and creating college savings accounts for their children. As part of the cycle, when people enter prisons and the doors behind them close, so do their families’ bank accounts and the doors to their children’s schools. At the same time, the cells next to them open, ready ...
When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, 2019 Seattle University School of Law
When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr
Seattle University Law Review
This Note will argue that all jurisdictions should follow the Washington State Court of Appeals, Division II in validating makeshift dwellings used by people experiencing homelessness as spaces protected from unwarranted police intrusions by shifting evaluations of “reasonable expectations of privacy” to a more equitable standard that appreciates the realities of economic disparity. This approach to constitutional protections against unreasonable searches and seizures is imperative to protect the rights of people experiencing homelessness, given that such individuals are regularly subjected to invasions of privacy and heightened exposure to the criminal justice system.