Digital Commons Network^™

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Centering Noncitizens’ Free Speech, Gregory P. Magarian

Scholarship@WashULaw

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Out Of Sight And Out Of Mind: Criminal Laws Disguised Moral Culpability Requirement, Andrew Ingram

University of Richmond Law Review

Last spring, the Supreme Court of the United States made a little-remarked constitutional ruling in Kahler v. Kansas. Upon casual inspection, Kahler looks like a doctrinal dead-end. The petitioner asked the Supreme Court to recognize a due process right for mentally ill defendants to raise the M’Naghten right-and-wrong test of insanity, and the Court said, “No.” The petitioner’s failure notwithstanding, Kahler is not a barren vine. On the contrary, it is heavy-laden with new doctrinal insights for criminal law scholars.

The case deserves a thorough look—not for what it can teach us about constitutional contentions that the Court has …

A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton

Publications

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

Structural Biases In Structural Constitutional Law, Jonathan S. Gould, David E. Pozen

Faculty Scholarship

Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions – not just episodically, based on who holds power at a given moment, but systematically over time – in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival …

The Press’S Responsibilities As A First Amendment Institution, Helen Norton

Publications

No abstract provided.

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

Requiring Majority Winners For Congressional Elections: Harnessing Federalism To Combat Extremism, Edward B. Foley

Lewis & Clark Law Review

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that …

Presidential Election Reform: A Current National Imperative, Mark Bohnerst, Reed Hundt, Kate E. Morrow, Aviam Soifer

Lewis & Clark Law Review

This Article suggests several important practical reforms in how we choose our President and Vice President. It first identifies problems with the Electoral College system, and proposes solutions that would not require a constitutional amendment. The Article also discusses how the long-forgotten provisions of Section 2 of the Fourteenth Amendment authorize reduction in the electoral votes from states whose legislatures deprive or abridge the right of the people to vote for their presidential electors. By exploring the history and language of Section 2, this Article demonstrates that it was ratified with the specific purpose of preventing state legislatures from usurping …

Immigration Detention As A Violation Of Transgender Detainees' Substantive Due Process Rights, Emily Torstveit Ngara

Lewis & Clark Law Review

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the …

Domsetic Terrorism: Not Actually A Crime, But Desperately In Need Of A Federal Response, Rebecca K. Tucker

Lewis & Clark Law Review

Since the founding of the United States, the U.S. Government has dealt with national security threats, both external and internal. While there are federal laws in place to protect the nation against external actors, these instruments cannot be turned directly inward to address the rising threat of domestic terrorism. This Comment explains the issues with that approach and concludes by proposing specific solutions, focusing on the need for a coordinated response from the agencies and departments tasked with the investigation, intelligence, and prevention of domestic violent extremism and terrorism.

Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly

Law Faculty Publications

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of …

Keeping Our Republic, Ashlee A. Paxton-Turner

Law Faculty Publications

In championing the Constitution at a time when most Americans hardly felt any national allegiance, Alexander Hamilton insisted on “think[ing] continentally.” In other words, if the fledging nation were going to survive, the loose confederation of states formed under the Articles of Confederation was not the answer. For many Americans in 1787, the idea of abandoning  this loose confederation was a hard sell. But Hamilton, along with James Madison and John Jay, understood that a new structure of government was needed. And it is here—with this colonial trio—that our story begins. ...

Countering The Criminal Nature Of Immigration Enforcement: A Proposal To Expand Constitutional Safeguards, Madeleine Powers

Seattle Journal for Social Justice

No abstract provided.

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …

Popular Enforcement Of Controversial Legislation, Randy Beck

Scholarly Works

Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Faculty Scholarship

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, …

The Emergence Of Neutrality, Jud Campbell

Law Faculty Publications

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, focused on protecting …

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 …

Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

Akron Law Faculty Publications

This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s …

Misinformation About Marijuana: Commercialization, Consolidation, And The New First Amendment, David Angelatos

American University Law Review

From “Reefer Madness” to “This Is Your Brain on Drugs,” Americans have lived through decades of anti-cannabis propaganda. Legalization is poised to turn this information environment on its head, unleashing a torrent of corporate-funded, pro-cannabis misinformation that regulators cannot prevent or dispel. This appears to be a problem caused by the Supreme Court’s creation and expansion over the past fifty years of First Amendment protections for corporate and commercial speech. Although these doctrines contribute substantially to the problem, this Article shows how it originates in lax antitrust policy rather than expansive First Amendment jurisprudence.

If Congress follows current legalization trends …

First Amendment Challenges To State Vaccine Mandats: Why The U.S. Supreme Court Should Hold That The Free Exercise Clause Does Not Require Religious Exemptions, Donna M. Gitter

American University Law Review

The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases.

This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

American University Law Review

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …