Digital Commons Network^™

The Censorship Constraint And Rulemaker State Action: Are Section 230'S Immunity Provisions Unconstitutional Content-Based Regulations?, Scot A. Reader

West Virginia Law Review

Even casual watchers of T.V. crime dramas understand the Fourth Amendment’s exclusionary rule. Under this rule, evidence obtained by the police in a search of a criminal suspect’s premises that exceeds the scope of a judicial warrant is almost always inadmissible in the suspect’s criminal trial. The rule is designed to deter unreasonable governmental intrusion into private affairs and applies without regard for the suspect’s guilt or innocence. This Article proposes that the First Amendment includes an analogous rule against governmental censorship. Under this rule, content-based speech regulations exceed the legislature’s speech rulemaking warrant and are almost always invalid. This …

A Square Double Helix In A Round Hole: Forensic Genetic Genealogy Searches And The Fourth Amendment, Matthew Sweat

Georgia State University Law Review

A forensic genetic genealogy search (FGGS) involves law enforcement’s use of consumer DNA databases to generate leads to solve cold cases. As a result of more modern technological processes, the DNA profiles kept in consumer databases are far more revealing than the DNA profiles stored in the FBI’s Combined DNA Index System (CODIS). Accordingly, each DNA profile in a consumer database can be used to identify hundreds of relatives related to the DNA’s contributor.

The government’s use of consumer DNA databases to locate the perpetrators of horrific, unsolved crimes has generated fans and critics. Supporters of FGGSs argue that, in …

Constitutional Patriotism As Europe’S Public Philosophy? On The Responsiveness Of Post-National Law, Paul Linden-Retek

Contributions to Books

Published as Chapter 13 in Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law, Jan Komárek, ed.

This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This …

The Limitations Of Privacy Rights, Daniel J. Solove

Notre Dame Law Review

Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure (deletion), right to restriction, right to data portability, right to object, and right to not be subject to automated decisions. Privacy laws around the world include many of these rights in various forms.

In this Article, I contend that although rights are an important component of privacy regulation, rights are often asked to do far more work than …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Notre Dame Law Review

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

Warren/Burger Courts Exalted “Free” Expression Over Other American Values, Louis W. Hensler Iii

Marquette Law Review

Anglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government.

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Faculty Scholarship

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

Carceral Socialization As Voter Suppression, Danieli Evans

Articles

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples' sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Race, Religion, And National Identity Review Of Sahar Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (Uc Press, 2022), Natsu Taylor Saito

UC Law Constitutional Quarterly

No abstract provided.

State Separation Of Powers And The Federal Courts, Ann Woolhandler

William & Mary Bill of Rights Journal

The cases discussed herein mostly surfaced in the regulatory era of the latter half of the nineteenth century and the early twentieth century. This Article first discusses arguments as to state delegations of legislative power, and the Court’s rejection of legislative-style deference that state agencies often argued for. This Article next discusses the Court’s decisions as to state adjudicative bodies, and its refusal to treat state agency adjudicators as full-fledged courts. This Article then addresses the Court’s response to arguments for unreviewable executive discretion and to laws allowing delegations to private parties. It then addresses whether the discussion sheds light …

On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill

William & Mary Bill of Rights Journal

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …

The False Promise Of Expanded Religious Liberty Rights After The Covid-19 Cases And Fulton V. City Of Philadelphia, Shlomo C. Pill

William & Mary Bill of Rights Journal

This Article explains and critiques the Supreme Court’s recent reframing of religious free exercise rights. This change was initiated by a series of “shadow docket” rulings issued in late 2020 and early 2021 in which the Court sustained religious challenges to COVID-19 capacity restrictions and mask mandates. That doctrinal shift was confirmed and reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia. In these cases, the Court significantly narrowed the Smith test, which, since 1990, had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free …

Answering The Political Question: Demonstrating An Intent-Based Framework For Partisan Gerrymandering, Kyle H. Keraga

William & Mary Bill of Rights Journal

Partisan gerrymandering is widely recognized as a threat to the foundations of our democracy. Political parties with control over their state legislatures routinely leverage the redistricting process to entrench themselves in power—suppressing political adversaries, chilling public participation, and polarizing the electorate. Nevertheless, despite a persistent recognition that partisan gerrymandering is incompatible with basic democratic principles, the Supreme Court struggled to develop a stable and consistent doctrinal approach to this issue, even as reliable standards emerged to adjudicate malapportionment and racial gerrymandering claims. Recently, in Rucho v. Common Cause, the Court abandoned the search entirely, holding that partisan gerrymandering is …

Congressional Power, Public Rights, And Non-Article Iii Adjudication, John M. Golden, Thomas H. Lee

Notre Dame Law Review

When can Congress vest in administrative agencies or other non–Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that Congress may employ non–Article III adjudicators in territorial courts, in military courts, and for decision of matters of public right. Scholars have criticized this so-called “public rights” doctrine as incoherent but have struggled to offer a more cogent answer.

This Article provides a new, overarching explanation of when and why Congress may use non–Article III federal officials to adjudicate matters …

The Limits Of Church Autonomy, Lael Weinberger

Notre Dame Law Review

American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to …

Policing Pregnancy "Crimes", Valena Beety, Jennifer Oliva

Articles by Maurer Faculty

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds …

Evaluating Congress's Constitutional Basis To Abolish Felony Disenfranchisement, James E. Lauerman

Washington Law Review

In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by …

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible "Decision of 1789" as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law's strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president's power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist …

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Lies,Damn Lies, And Kamikaze Lies: Protecting Falsehoods In The Name Of Truth, Doris Deltosto Brogan

Faculty Publications

Despite calls to reverse New York Times v. Sullivan and abandon the reckless disregard standard for public figure defamation cases--calls offered by two Supreme Court Justices, a number of legal scholars and some members of the popular press-- this article demonstrates that Sullivan’s protections have never been more relevant or more necessary, particularly in light of an epidemic of malicious, often strategic falsity, as well as overt assaults on the institutional press by powerful actors. We need Sullivan now more than ever. Further, for Sullivan to do its work effectively, it must be reinforced by two other legal protections: robust …

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 …

Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …

Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk

Pepperdine Law Review

This Comment examines the phenomenon of prison gerrymandering, a practice that involves counting prisoners as residents of the counties where their state correctional facilities are located—rather than in their home communities—for redistricting and representational purposes. This practice of counting inflates the voting power of rural, white districts with large prison complexes and diminishes the voting power of minority communities. Prison gerrymandering has become especially pervasive across southern states while many of the South’s northern counterparts have eradicated this practice through legislative reform. This Comment proposes a solution to stop prison gerrymandering in the South, arguing a strategy to produce a …

Freedom Of Expression And The Charter: 1982-2022, Jamie Cameron

Commissioned Reports, Studies and Public Policy Documents

In 2022, on the 40^th anniversary of the Canadian Charter of Rights and Freedoms, I wrote a 5-part blog series that reviewed the Supreme Court of Canada’s s.2(b) jurisprudence. These blogs were published by the Centre for Free Expression (CFE) at Toronto Metropolitan University (TMU), and can be found on the CFE website (See author page: https://cfe.torontomu.ca/blog?issues=All&authors=117). The five blogs, which are consolidated here, begin with a comment on the Court’s 2021 landmark decisions in City of Toronto v. Ontario and Ward v. Quebec. The second blog shifts, providing a quantitative and qualitative survey of the …

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 …

The Spirit Of Gun Laws, Noah Levine

Duke Journal of Constitutional Law & Public Policy Sidebar

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when …

Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett

Duke Journal of Constitutional Law & Public Policy Sidebar

The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."

This …

Discretionary Disfunction And Shivers V. United States: Consequences Of Assuming The Intent Of Congress, Emily B. Garza

Texas A&M Law Review

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act.

This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for …

An Imperfect Solution: The Due Process Case For Providing Court-Appointed Interpreters For Pro Se Plaintiffs, Abdullah Z. Khalil

Texas A&M Law Review

A federal law, the Court Interpreters Act, provides litigants with complimentary access to a qualified or professionally certified interpreter in actions instituted by the United States. The majority of pro se civil litigation in federal courts is initiated by the United States, and thus, those pro se litigants who speak little-to-no English need not pay for access to an exceptional interpreter. Indeed, federal courts offer interpreters proficient in a multitude of languages, and the courts work hard to ensure adequate interpretation in proceedings brought by the United States.

However, those limited-English-proficient pro se plaintiffs initiating their own lawsuits face a …