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Press Protection As Anticorruption, Zachary Reger

Texas A&M Law Review

As the partisan press of the Founding Era gave way to the commercial press of the nineteenth century, then to the professional press of the twentieth century, American journalism assumed an increasingly skeptical attitude toward governmental power. Today, the investigatory and information-spreading functions of the “fourth branch” are more important than ever to checking public corruption in a vast administrative state. At the same time, the press faces financial crisis, threatening the anticorruption interest.

This Essay evaluates three mechanisms for shoring up the corruption-fighting role of American journalism: (1) constitutional speech protections for the corporate form taken by most modern …

Masalah Lingkungan Hidup Dan Dampak Sosialnya, Prof. Dr. Soerjono Soekanto, S.H., M.A.

Jurnal Hukum & Pembangunan

Abstract

Brief Of First Amendment Scholars As Amici Curiae Supporting Petitioner, Joseph M. Terry, Stephen J. Fuzesi, James N. Sasso, Langston E. Ward, Richard W. Garnett

Court Briefs

No. 25-927
Richard Lowery v. Lillian Mills

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

The suppression of constitutionally protected speech violates the First Amendment. A speaker need not be punished to be able to state a cause of action if the government has suppressed or threatens to suppress his or her speech through other means. This Court, across decades, and in a range of contexts, repeatedly has reaffirmed that principle. It has done so in cases affirming that a party may challenge a criminal statute …

Asarco Delenda Est, John M. Greabe

Law Faculty Scholarship

ASARCO Inc. v. Kadish is the most important Supreme Court decision addressing the adjudication in state courts of federal claims that Article III’s case-or-controversy requirements would bar lower federal courts from hearing. But there are two serious problems with the reasoning of ASARCO: one involving an error of omission and the other an error of commission. ASARCO’s error of omission is its apparent assumption that a party barred from asserting a federal claim in federal court because of a lack of redressable Article III injury caused by the conduct complained of should face no barriers to obtaining relief on the …

The Trump Administration’S Theory Of Constitutional War Powers: “The President Could Decide”, Rebecca Ingber

Online Publications

President Donald Trump has launched another unlawful war, this time in the service of regime change in Iran. The administration has been threatening the use of force for weeks, but provided very little public justification, description of what the president hoped to accomplish, or explanation for how the use of force would effectuate such goals. It has also to date presented no legal justification whatsoever. Much of what we know at this moment about how the administration views, and how it lawyers, questions of war powers can be derived from the one legal memorandum the administration has released on the …

Logic, Experience, Dan Pengembangunan Hukum, M. Rachim Sjaian, S.H.

Jurnal Hukum & Pembangunan

Abstract

"In Better Times": The Basis Of Representation And The Forgotten History Of The Fourteenth Amendment, Jessica I. Gorovitz

Fordham Law Review

Over the past several years, the U.S. Supreme Court has incorporated history into the analysis of unenumerated individual rights, like abortion, and enumerated ones, like the right to keep and bear arms. But it has not incorporated history into its approach to individual rights claims of racial discrimination under the Equal Protection Clause, a methodological gap the Court has left unexplained. Rather, it has held that the purpose of the Fourteenth Amendment is to prevent racial classifications, largely citing its own precedent, eschewing the Amendment’s history. This approach conflicts with section 2 of the Voting Rights Act, which requires states …

The Fourth Amendment's Right To Be Secure, Thomas K. Clancy

William & Mary Bill of Rights Journal

Beginning with a 1998 article and through the editions of my treatise, I have argued that the right to be “secure” must be properly understood. The right to be secure is the powerful ability to exclude the government, and it protects against physical and technological intrusions. As will be discussed, my interpretation has had some influence among courts and scholars. Several academics have taken time to discuss it, and it has been noticed in the Supreme Court. This Essay seeks to dispel some of those characterizations and clarify the meaning of the right to be secure.

The Amendment in its …

Facing State-Created Danger In Facial Recognition Technology, Esha Jain

Washington Law Review

When the police wrongfully arrest someone, that person faces distinct harms. Various scholarship, news articles, and studies document that AI-powered facial recognition technology (FRT) disproportionately misidentifies individuals from marginalized racial groups when used irresponsibly. Many of those sources indicate that police reliance on FRT without adequate vetting results in wrongful arrests. Yet law enforcement continues to misuse FRT.

This Comment contends that the 42 U.S.C. § 1983 state-created danger doctrine offers a potential remedy for plaintiffs harmed by police reliance on FRT. To prevail under this doctrine, plaintiffs must prove affirmative conduct, deliberate indifference, and proximate causation. If successful, these …

Reason Enough: The Wrongful Extension Of Asylum’S “One Central Reason” Nexus Standard To Withholding Of Removal, Elaine Hernandez Flores

Washington Law Review

Noncitizens often come to the United States seeking protection from violence, persecution, or life-threatening conditions in their home countries. However, upon arrival, many noncitizens are placed in removal proceedings and face deportation back to the very dangers they escaped. U.S. immigration law provides various forms of relief from deportation, most notably asylum and withholding of removal. Both forms require the applicant to show a connection—or “nexus”—between the persecutor’s motive for persecuting them and one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.

Although asylum and withholding of removal both require a noncitizen …

Less Fisher More Doe: Non-Testimonial Mental Content And A New Rule For Unlocking Digital Devices, Jordan Wallace-Wolf

William & Mary Bill of Rights Journal

Roughly fifteen years ago, courts started to regularly confront a fact pattern that I refer to as the unlocking scenario. In this kind of case, the government seeks evidence on a criminal defendant’s digital device, but it cannot access it due to a sufficiently strong system of password protection or encryption. May the government compel the defendant to unlock the device, or would this compulsion make the defendant “a witness against himself”?

Courts gave different answers to this question right from the start, but their answers have started to diverge even more markedly in recent years, notwithstanding two formative papers …

Free Speech Trapped In Amber: The Rise Of The 'History And Tradition' Test, From Unregulated Guns To Highly Regulated Speech, Matthew D. Bunker, Emily Erickson

William & Mary Bill of Rights Journal

An insidious virus appears poised to invade First Amendment free speech doctrine. “History and tradition,” a deeply flawed variant of originalism, threatens to transform speech law from a rational enterprise, employing tiers of scrutiny to evaluate potential infringements on speech, to a random scavenger hunt through the distant past that could upend numerous vital First Amendment principles.

Traditionalism’s ascendence to the forefront of history-centric constitutional interpretation was heralded in three dramatic cases decided at the end of the U.S. Supreme Court’s October 2021 term. New York State Rifle & Pistol Ass’n v. Bruen elicited particular concern among First Amendment scholars, …

The History Of Multi-Member Commissions At The Founding, 1789-1840: New Evidence On Independent Agencies, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The executive removal power figures prominently on the Supreme Court’s current agenda. That agenda is beset, however, by a historical misunderstanding, when it comes to multi-member bodies, which too often are assumed to be modern creatures. This paper provides crucial new historical evidence showing that the Founders, indeed a who’s who list of Founders, approved and even sat on commissions in the Republic’s early years. In some cases, the Founders called these early commissions “independent,” deferred to their judgments as “final,” and demanded that the members be “impartial.” Given the vast discretion given these commissions, these characteristics are best described …

Exception To Abolition: Reforming Prison Labor Through Constitutional And State-Level Change, Caren Abourjeily

Nevada Law Journal

No abstract provided.

Our Eviction Court Clients Need This Treaty: The U.S. Must Finally Ratify The International Covenant On Economic, Social, And Cultural Rights, Fran Quigley

Marquette Benefits and Social Welfare Law Review

Anyone enduring poverty in the U.S. or working with persons enduring poverty–as we do in our law school eviction clinic–is aware that housing, healthcare, food, and sufficient income are essential to human survival and dignity. Yet those basic necessities are not rights guaranteed under U.S. law. Instead, discretionary, underfunded efforts to address economic needs have led to widespread U.S. poverty and a toxic one-step-forward/one-step-backward policy dance, characterized by safety net programs expanding only to be cut when political winds shift.

The U.S. should join nearly every other nation in the world by ratifying the International Covenant on Economic, Social, and …

Complicit Nullification: The Illegitimate (Abrogation) Of School Religious Liberty Precedent, Amanda Harmon Cooley

Cardozo Law Review

Louisiana has enacted legislation that mandates the display of the Ten Commandments in every public school classroom. This statutory mandate directly contradicts the Supreme Court’s extant precedent in Stone v. Graham. Legislators in Texas, North Dakota, South Dakota, Oklahoma, Tennessee, and Kentucky have also indicated plans to introduce similar unconstitutional legislation, defying the Supreme Court’s interpretations of the First Amendment’s Religion Clauses. Similarly, Texas and Florida now permit public school chaplains or Bible-based public school curricula, which violates the Court’s longstanding prohibitions on such actions, as established in its 1948 ruling in Illinois ex rel. McCollum v. Board of Education …

After Grants Pass: The Case For Recentering The Criminal Legal System And Its Constitutional Constraints, Scout Katovich

William & Mary Law Review

In City of Grants Pass v. Johnson, the Supreme Court held that the Eighth Amendment does not prohibit cities from punishing unhoused people for sleeping outside when they have nowhere else to go. While the holding was legally narrow, the Court’s rhetoric framed criminalization as sound policy rather than punishment, obscuring the criminal legal system implications at the heart of the case. Cities responded not to the narrow holding but to the rhetorical message: In the year following the decision, they enacted hundreds of new laws criminalizing homelessness and dramatically intensified enforcement.

This Article argues for the recentering of …

Discriminatory Effect(S), W. Kerrel Murray

Faculty Scholarship

In constitutional law, “discriminatory effect” often matters. So it’s surprising how often we don’t quite know what it means. That opacity is trans-substantive; it has been a recent pitfall in contexts as diverse as admissions-policy challenges under the Equal Protection Clause, personal-jurisdiction disputes under the “dormant” Commerce Clause, and, under the Free Exercise Clause, requests for exemptions from facially neutral laws.

This Article’s first corrective is a novel typology. Constitutional discriminatory effect is murky, in part, because it has many types; we perceive it in myriad ways across constitutional domains. Comprehending this complexity enhances our understanding of what discriminatory-effect rules …

When Constitutional Protection For Religious Liberty Gets Lost In Translation: A Case Study From Washington State, Robert W. Gomulkiewicz

UC Law Constitutional Quarterly

Protecting religious liberty can present difficult challenges when religious liberty conflicts with laws prohibiting discrimination. Balancing religious liberty and nondiscrimination requires courts to accurately apply the U.S. Supreme Court’s complex First Amendment jurisprudence, including cases that address compelled speech, expressive association, and church autonomy. Amidst all the complexity, protection for religious liberty can get lost in translation. One important venue where protection can get lost in translation is in religious liberty cases decided by state supreme courts. The decisions of state supreme courts are especially significant because they provide the authoritative construction for state statutes and the state constitution. In …

The Merit Systems Protection Board And Removal Doctrine In The Second Trump Administration, Nathan A. Thomas

UC Law Constitutional Quarterly

In a federal civil service of millions, a means of adjudicating internal employment disputes objectively and efficiently is integral to the continued confidence of the federal workforce.1 This is the role occupied by the U.S. Merit Systems Protection Board.2 On February 10, 2025, President Trump fired MSPB Chairman Cathy Harris without citing any reason, in direct violation of the good cause standard needed to remove an MSPB Board member. 3 President Trump’s unjustified firing of Chairman Harris reopens the ongoing assault on removal doctrine, but this note argues that the structure of the MSPB is constitutional under current removal doctrine. …

Amicus Brief In Trump V. Barbara: An Originalist Defense Of Birthright Citizenship, Jed Handelsman Shugerman, Evan D. Bernick

Faculty Scholarship

For nearly all of the first 235 years under the Constitution, the citizenship of every child born in the United States to alien parents, with immaterial exceptions, was a given. Then, in 2025, the Trump administration changed course. Even though the Fourteenth Amendment makes no mention of limiting birthright citizenship to the children of domiciled parents, the Government now claims that is what “subject to the jurisdiction thereof” has always meant. While the Government and its amici admit that the common law recognized the citizenship of children of transient aliens, their remaining “survey of history range[s] from the constitutionally irrelevant” …

Masalah Penegakan Hukum Dan Kesadaran Hukum, Dr. Soerjono Soekanto, S.H., M.A.

Jurnal Hukum & Pembangunan

Abstract

Standing In The Shadows: Member Anonymity In Associational Standing Cases, Mitchell Brost

Pepperdine Law Review

Associational standing serves several benefits for plaintiff members: associations often have expertise in a certain field that guides the representation of their members, they have greater resources that allow them to bring lawsuits in the first place, and they can serve as the public face of the lawsuit to shield the plaintiff member from serious retaliation that may result from bringing the claim. But due to some imprecise language in Justice Scalia’s majority opinion in Summers v. Earth Island Institute, circuit courts are divided over whether associational members can remain anonymous at all. Thus, individuals who have legitimate legal claims, …

Jealously Guarded: The Right To Trial By Jury In Federal Court Under California’S Unruh Civil Rights Act, Denis Bogatin

Pepperdine Law Review

Since California adopted heightened pleading standards for high-frequency litigants alleging violations of the Unruh Act in state court, federal district courts have seen a surge of ADA and Unruh Act claims filed together to secure subject matter jurisdiction. Most courts dismissed the Unruh claims under their discretionary authority under 28 U.S.C. § 1367, but they remained divided on whether plaintiffs in these cases have a right to jury trial—statutory or constitutional. In 2025, the Ninth Circuit resolved part of the split in In re Tsay, holding that the Unruh Act provides a constitutional right to a jury trial because it …

The Power To Declare Peace, Michael Stokes Paulsen

Pepperdine Law Review

The Constitution gives Congress the power “to declare War.” The meaning of that grant of power is much debated, but its converse is much neglected: To whom does the Constitution assign the power to declare peace? This Article comprehensively examines the Constitution’s various assignments of the power(s) to make peace—constitutional powers to end, as a practical matter and as a binding legal matter, a prior legal condition of war. Both the President and Congress possess several such powers. The President has the power, with the advice and consent of two-thirds of the Senate, to make treaties, including peace treaties that …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …