Digital Commons Network^™

Bivens And Beyond: Creating A Meaningful Remedy For Federal Prisoners In A Post-Boule Landscape, Hannah M. Wilk

Washington and Lee Journal of Civil Rights and Social Justice

For nearly 50 years, the Bivens action served as a vehicle to compensate individuals when their constitutional rights had been infringed on by a federal officer. Bivens actions operated as the federal equivalent of Section 1983 claims in state courts against state officers. But in June 2022, with a conservative majority in the U.S. Supreme Court, the Bivens framework was gutted by Egbert v. Boule. Boule held that if a Bivens claim is filed in a context that differs from the three previously accepted contexts (the Fourth, Fifth, and Eighth Amendments), the claim must fail, as Congress is better equipped …

Skirting The Fourth Amendment: How Law Enforcement Agencies Abuse Technology And Constitutional Exceptions To Surveille The Public, Matthew Lloyd

Washington and Lee Journal of Civil Rights and Social Justice

Existing Fourth Amendment law does not protect against law enforcement use of data gathered through the internet either by private companies who actively search their customer’s data and submit evidence of misconduct to law enforcement or from private companies who acquire the data on behalf of law enforcement. In an effort to pursue criminals, courts have permitted Fourth Amendment jurisprudence to develop in a manner that permits sweeping invasions of privacy without any probable cause through the private search doctrine or without any procedural protections through the third-party doctrine. It will require substantial judicial or legislative action to return the …

Constitutional Law—Arkansas's Unconstitutional Attack On Transgender Children And The Rights Of Their Parents, Falyn Traina

University of Arkansas at Little Rock Law Review

No abstract provided.

Unraveling A Ball Of Confusion: Layers Of Criminal Intent, Facebook, Rap, And Uncertainty In Elonis V. United States, 135 S. Ct. 2001 (2015), Cameron L. Fields

MC Law Review

“So, round and around and around we go. Where the world's heading nobody knows...Just a ball of confusion."

Elonis v. United States was a much-awaited case needed to clarify many questions within its realm. Part of the case's allure was its facts: threats, rap, and Facebook. While the alluring circumstances were well-presented, the potential for clarification was not realized. As the quotes from the various opinions above suggest, a song from the oldies had hinted at this ruling correctly when its lyrics said it's "just a ball of confusion." This Note seeks to unravel this ball of confusion to give, …

Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio

Catholic University Law Review

The Trump-era unitary executive movement sought to expand presidential

power and shrink the influence of the administrative state through deregulation.

This movement ripples into the present moment, as Trump’s overhaul of the

federal judiciary installed a comprehensive system to delegitimize

administrative agency action— a system that is certain to endure. The

independence and role of administrative law judges (ALJs) has proven a key

target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities

and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause

removal protections of SEC ALJs violated the Take Care Clause of Article …

What We Pretend To Be: Codifying A Right To A Religious Advisor In The Execution Chamber, Claire R. Jenkins

William & Mary Journal of Race, Gender, and Social Justice

Over the last fifty years, the Supreme Court has moved the pendulum both toward religious accommodation and away from it. After a decade of oscillating Court decisions, multiple attempts at corrective action by Congress, and widespread social activism, the Religious Land Use and Institutionalized Person’s Act, or RLUIPA, was passed in 2000. RLUIPA was designed to fortify the rights of incarcerated persons and provide clarification to the Religious Freedom Restoration Act. As of 2024, the Supreme Court has granted certiorari in only a few RLUIPA cases—and has decided even less about the application of the law to death row inmates. …

Cherry-Picking History: Witchcraft, The Common Law, And The Weaponization Of Substantive Due Process, Sarah E. Bradley

William & Mary Journal of Race, Gender, and Social Justice

In 2021, the Supreme Court sharply altered its substantive due process analysis in Dobbs v. Jackson Women’s Health Organization, reversing the 49-year-old decision in Roe v. Wade to establish abortion access as a constitutional right. The Court reframed its substantive due process analysis as a two-step test, requiring a right to be narrowly framed and “deeply rooted in history and tradition” before it could be analyzed as “implicit in the concept of liberty,” instead of its previous balancing test that involved a broad description of the right. In the Dobbs majority opinion, the Court cherry-picked elements of common law …

The Ninth Amendment: An Underutilized Protection For Reproductive Choice, Layne Huff

Journal of Law and Health

Concern about individual rights and the desire to protect them has been part of our nation since its founding, and continues to be so today. The Ninth Amendment was created to assuage the Framers’ concerns that enumerating some rights in the Bill of Rights would leave unenumerated rights unrecognized and unprotected, affirming that those rights are not disparaged or denied by their lack of textual support. The Ninth Amendment has appeared infrequently in our jurisprudence, and Courts initially construed it rather narrowly. But starting in the 1960s, the Ninth Amendment emerged as a powerful tool not just for recognizing unanticipated …

Restorative Constitutionalism, David E. Landau, Rosalind Dixon

Washington and Lee Law Review

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at …

Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran

Catholic University Law Review

During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens.

Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented …

Legislating Courts, Michael C. Pollack

Articles

No abstract provided.

Konstitusionalitas Open Legal Policy Mengenai Kebijakan Earmarking Pajak Karbon Di Indonesia, Mahaarum Kusuma Pertiwi, Praditya Janu Wisaksono

Jurnal Hukum & Pembangunan

The Law on Harmonization of Tax Regulation mandates government regulation to regulate the allocation of carbon tax revenue for controlling climate change. Based on Article 13 paragraph (12) and paragraph (15) letter b of the Law on Harmonization of Tax Regulation as well as the Constitutional Court's judicial review decisions regarding open legal policies and tax earmarking, this article answers questions regarding the legal construction of open legal policy options in Indonesia which confirms further delegation of carbon tax earmarking through government regulation. The government may allocate state revenue from carbon tax to control climate change. This means that carbon …

Reinterpreting Article 9 Of Japanese Constitutional Law From The International Law Perspective, Hiroshi Saito

Japanese Society and Culture

This essay aims to demonstrate that the right of collective self-defense complements that of individual self-defense. Moreover, by exercising both rights of self-defense together, the ideals of the United Nations (UN) Charter and Japanese constitutional law can be implemented as stipulated.

However, this essay focuses on ensuring better consistency with the present time (synchronicity) rather than historical facts (historicity). Additionally, I have cited cases wherein the ideas and theories presented are controversial in academic circles. I cannot discuss them individually in this essay owing to space limitations, but I will consider them in a future opportunity. Finally, I would like …

A New Federalist Approach To Reducing Gun Violence: Model State Policy For Medicaid-Funded, Hospital-Based Violence Intervention Programs, Racquel Bozzelli

Buffalo Law Review

No abstract provided.

The Gettysburg Address: Lincoln’S Model Legal Argument, Patrick J. Long

Buffalo Law Review

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

Inequitable By Design: The Strategic Distribution Of Costs And Benefits By Business Improvement Districts And Special Assessments, Molly Gillespie

Et Cetera

Business Improvement Districts (BIDs) are most commonly credited for their innovative strategies in rejuvenating the economic vitality in American cities. However, their implementation raises concerns about fairness and equity. The current practice of financing BIDs through special assessments, particularly applying the front footage method, disproportionately burdens certain property owners for the benefit of others. Consequently, property owners face a range of issues, including financial strain, involuntary annexation, and potential threats to property ownership. However, the existing framework of state constitutions lack the necessary provisions to adequately address these challenges, underscoring the need for significant reform.

This Note addresses these concerns …

Brief Of Children’S Rights Advocates In Support Of Appellees: Held V. Montana, Asha Brundage-Moore, Wyatt Sassman, Catherine Smith

Scholarly Articles

Amici Curiae are members of the Consortium for the Advancement of Children’s Constitutional Rights and Healthy Mothers, Heathy Babies: The Montana Coalition who are children’s rights advocates and legal scholars. Amici submit this brief to: (1) highlight Montana’s Constitution as a leader in advancing children’s constitutional rights; (2) draw this Court’s attention to the Montana Constitution’s text and history recognizing children’s right to a clean and healthful environment; and (3) explain that a decision not to safeguard children’s right to a clean and healthful environment in reliance on adult-centric analytical missteps advanced by Appellants (and supporting Amici) would deny Montana’s …

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Judicial Libraries As Predictors For Effective Administration Of Justice In Nigeria, Emmanuel Owushi

Library Philosophy and Practice (e-journal)

The study examined judicial libraries as predictors for effective administration of justice in Nigeria. The population involved all legal practitioners and legal educators in Nigeria. 4000 respondents were sampled. Due to unavailability of the population at the time of the study, the adopted convenience sampling technique to sample 4000 respondents across legal professional bodies in Nigeria. A structured questionnaire titled ‘Use of Judicial Library and Administration of Justice Scale’ was used for data collection. The questionnaire was structured with the 4-point Likert scale response style, designed on Google form and distributed to the respondents via various social media platforms. A …

Filling The Potholes Of Pretextual Traffic Stops: A Better Road Forward For Ohio, Jordan Weeks

Cleveland State Law Review

The Fourth Amendment was one of the driving forces behind the United States Revolution. This Amendment generally protects individuals against “unreasonable” searches and seizures. But what does “reasonable” mean in the context of a traffic stop?

In 1996, the U.S. Supreme Court in Whren v. United States tried answering this question. In so doing, the Court determined that pretextual traffic stops are “reasonable.” Pretextual traffic stops occur where an officer stops a vehicle and cites a lawful reason for the stop, yet the underlying reason is unlawful. The Whren Court determined that an officer’s intent is completely irrelevant to whether …

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 …

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 …

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

Armed And Under The Influence: The Second Amendment And The Intoxicant Rule After Bruen, F. Lee Francis

Marquette Law Review

In 2001, the Michigan Legislature passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that alcohol misuse is keenly associated with firearm ownership, risk behaviors involving firearms as well as risk for perpetrating harm to one’s self or others. Researchers also found that an estimated 8.9 to 11.7 million firearm owners binge drink in an average month. In an attempt …

Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii

Marquette Law Review

This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that

a violation of Miranda was not a violation of the Fifth Amendment privilege

against self-incrimination. This Article examines the original language of the

Miranda opinion, the statements and intentions of the members of the Miranda

Court, and subsequent precedent to determine Miranda’s true nature. Further,

this Article examines the reasoning of Vega and the dangers created by its

pronouncements, especially in light of the Court’s earlier characterization of

Miranda as a constitutional rule in Dickerson v. United States. This Article

asserts that the Justices who …

Filtered Dragnets And The Anti-Authoritarian Fourth Amendment, Jane R. Bambauer

UF Law Faculty Publications

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities.

However, filtered dragnets imperil society precisely because they …

Eavesdropping, The Fourth Amendment, And The Common Law (Of Eavesdropping), Donald A. Dripps

William & Mary Bill of Rights Journal

This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?

[...]

Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of …

Tax-Funded Education Savings Account Payments To Religious Schools Violate State Constitution Compulsion Guarantees: The Iowa Example, Allan Walker Vestal

William & Mary Bill of Rights Journal

[...] This Article makes the unremarkable and conservative argument that the transfer of public funds to religious schools under Iowa’s education savings account program violates the Iowa Constitution’s compulsion guarantee.

We start by looking at the Iowa compulsion guarantee, including a review of the Iowa authorities which have construed it, the historical record and setting of its adoption, and the history of its New Jersey antecedent. We then introduce the education savings account mechanism by which Iowa’s religious schools stand to receive more than a third of a billion dollars annually by FY 2027. After that, we consider whether education …

Harmonizing Freedom Of Speech And Free Exercise Of Religion, John Fee

William & Mary Bill of Rights Journal

[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.

With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith] …

The Ideology Of Press Freedom, Hannah Bloch-Wehba

Faculty Scholarship

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …