Digital Commons Network^™

The Ambitions Of History And Tradition In And Beyond The Second Amendment, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi, the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate …

Rethinking The Fund Termination Sanction, Samuel R. Bagenstos

Articles

Title VI of the Civil Rights Act of 1964 is often referred to as the “sleeping giant” of civil rights law. It is a “giant” because it prohibits any form of race discrimination engaged in by any recipient of federal financial assistance, and because the remedy set forth in the statute for a violation is the termination of federal funds. And it is “sleeping” because, except for a brief moment during the desegregation era, the federal government had never seriously attempted to terminate a recipient’s federal grants for a violation of the statute. Nor had the federal government seriously attempted …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

Cruel And Unusual Punishments And The Constitutional Status Of The Idea Of Progress, R. George Wright

FIU Law Review

To this point, we have developed some idea of what progress might have meant to the constitutional Framers, ratifiers, and later judges. We need not attempt the fruitless task of doing any precise head count of the variations of the concrete meaning, perceived likelihood, or value of progress among those parties. Doubtless some persons were more optimistic than others.178 But we need only assume that enough constitutional Framers, ratifiers, and judicial interpreters sufficiently shared any mainstream understanding of progress. Any such constitutional legitimacy of the idea, or the multiple ideas, of progress licenses the language of progress embraced in Trop.

Virtual Harm, Real Consequences: Constitutional Justifications For Criminalizing Ai-Generated Child Pornography, Adam Abdin

FIU Law Review

Advances in artificial intelligence (AI) have enabled the creation of hyper-realistic child sexual abuse images without any real child involved. These AI-generated depictions pose a unique challenge: they replicate the most pernicious form of pornography—child pornography—while potentially being claimed as “speech” immune from regulation. This paper argues that it is both constitutionally permissible and morally imperative to criminalize AI-generated child pornography. This article presents two doctrinal pathways to justify a ban. First, such content can be treated as unprotected speech under existing First Amendment exceptions. Courts have long held that child pornography and obscenity lie outside First Amendment protection, and …

Spending Programs And The New Roberts Court, Nicole Huberfeld

Faculty Scholarship

The Supreme Court is poised to place new limits on Congress’s spending power at the urging of states vying for regulatory dominance, particularly in health care and public health. This article is the first to highlight and catalog the throughlines of argumentation, which sparked after states successfully challenged the ACA but have grown into opposing more than Medicaid’s cooperative federalism. This means federal and state programs that heavily rely on federal spending power are at risk, so studying this pattern is imperative. The article begins with a descriptive account of increasing spending power challenges, which make use of converging factors …

Five Lessons From Ken Kersch’S Conservatives And The Constitution For The Present Moment, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and …

Seven County Infrastructure Coalition V. Eagle County, Craig A. Rigdon

Public Land & Resources Law Review

The National Environmental Policy Act of 1969 is a landmark in United States environmental law. For more than half a century, under its authority, all federal agencies contemplating proposed actions that pose significant environmental impacts have incorporated an analysis of those impacts into their decisions. These analyses provided an avenue for opponents to challenge an agency’s final decision in federal court. Earlier this year, the Supreme Court issued a “course correction” to rein in the disparate approaches that the lower courts had applied to cases challenging federal agency decisions on NEPA grounds. The unambiguous guidance the Court lays out for …

Diskursus Kriminalisasi Pemidanaan Terhadap Pemberi Gratifikasi, Muhammad Fatahillah Akbar

Jurnal Hukum & Pembangunan

This article aims to examine the legal basis to prosecute gratifiers in Indonesian Corruption Justice System. Samin Tan as the giver of gratification to Eni Maulani Saragih had been acquitted by the Corruption Court of Jakarta Decision Number 37/Pid.Sus-TPK/2021/PN.Jkt.Pst on 30^th August 2021. Then, the Cassation to Supreme Court had also been rejected by Supreme Court Decision Number 2205 K/Pid.sus/2022 on 9^th June, 2022. Hence, Samin Tan stays acquitted. The decision majorly focuses on the “absence” of law which criminalizes gratifiers or gratification givers. Therefore, this article elaborates how similar cases shall be handled in the future. In …

The Illusory Privilege Against Self-Incrimination, Kelsey Rohr

Arkansas Law Review

This Note addresses the insufficiency of the current system in protecting criminal defendants’ privilege against self-incrimination. Part II will outline the background legal principles of the issue, including the privilege against self-incrimination, the presumption of innocence, and the no-impeachment rule. This part will also address the Supreme Court’s sole judicial exception to the no-impeachment rule as laid out in Peña-Rodriguez v. Colorado. Part III will address the statistical significance of juror bias against criminal defendants who invoke the privilege, highlight the widespread nature of the bias, and argue that the procedural safeguards currently in place are insufficient to protect.

Catholic Institutions And The Religion Clauses: Faith In A Liberal Democracy, Angela C. Carmella

Chicago-Kent Law Review

No abstract provided.

The Ten Commandments In Louisiana Public Schools: A Study In The Survival Of Establishment Norms, Ira C. Lupu, Robert W. Tuttle

Chicago-Kent Law Review

No abstract provided.

History, Tradition, And Finding Common Ground: The Establishment Clause And Religious Expression By The State, Kathleen A. Brady

Chicago-Kent Law Review

No abstract provided.

Jurisdictional Diversity, Tradition, And The Religion Clauses, Steven D. Smith

Chicago-Kent Law Review

No abstract provided.

Attempting To Protect The Liberty And Equality Of Minority Faiths And Nonreligious Individuals When The Surpreme Court Will Not Do So, Alan Brownstein

Chicago-Kent Law Review

No abstract provided.

The Supreme Court's Gay Rights-Religious Liberty Contortions, Andrew Koppelman

Chicago-Kent Law Review

No abstract provided.

Religious Employment And The Tensions Between Liberty And Equality, R. Shawn Gunnarson, James C. Phillips, Christopher A. Bates

BYU Law Review

Located in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute’s text says otherwise. This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title …

Making A Martyr: The Inequity Of The Necessity Doctrine’S Application To The Fifth Amendment’S Takings Clause, Max Abrams

Villanova Law Review (1956 - )

No abstract provided.

The Rise And [?] Of Anti-Administrativism, Gary Lawson

BYU Law Review

Scholars have proclaimed the administrative state to be “Under Siege” or subject to a “Never-Ending Assault.” Was the election of President Donald Trump on November 5, 2024, the sixth, if not yet the seventh, day around the walls?

This seems an appropriate time to consider the present and future of opposition to the administrative state—something that has come to be dubbed “anti-administrativism.” The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this “anti-administrativism”? Without knowing the answer to that seemingly simple question, one cannot accurately …

An Exception To Prove The Rule: Rebutting The Presumption Of A Consistent And Definitive Construction, Miles C. Skedsvold

Mercer Law Review

Because the State of Georgia has had ten constitutions since declaring independence from Great Britain, the history of those prior constitutions has a lot to do with understanding the Constitution in force today. In particular, when a provision is carried forward from one constitution to the next without material change, the Supreme Court of Georgia’s decisions interpreting that provision under an earlier constitution can be a key piece of evidence for understanding its meaning in the later one.

The Supreme Court of Georgia calls this piece of the historical inquiry the presumption of a consistent and definitive construction: the provision …

Brief Of Lindsay And Matt Moroun Religious Liberty Clinic As Amicus Curiae In Support Of Appellants, John A. Meiser, Meredith Holland Kessler

Court Briefs

Nos. 25-2575, 25-2662
Commonwealth of Pennsylvania v. President United States of America

On Appeal from the U.S. District Court for the Eastern District of Pennsylvania
No. 2:17-cv-04540-WB (Hon. Wendy Bettlestone)

From the Summary of the Argument

The agencies’ promulgation of the Religious and Moral Rules challenged in this case was neither arbitrary nor capricious. Widespread litigation against the agencies’ contraceptive mandate under the Religious Freedom Restoration Act— and multiple trips to the Supreme Court—made clear that the mandate violates the federally protected rights of organizations like the Little Sisters of the Poor. After years of failed efforts to alleviate that …

Rules Of Decision, Judicial Power, And The Valid Rule Requirement, John Harrison

Catholic University Law Review

Some current Supreme Court debates that concern seemingly specialized issues raise fundamental questions about the role of the Constitution in the legal system and the role of the courts when they decide constitutional issues. In recent years, Justice Thomas has suggested that the doctrines of First Amendment overbreadth, so-called third-party standing in cases involving constitutional liberty, and statutory inseverability call on federal courts to exceed their role under Article III. Justice Thomas maintains that when courts apply those doctrines, the courts decide cases not before them. Building on the work of Professor Henry Monaghan, this article argues that those concerns …

Facial Challenges, Remedies, And The Judicial Power, Natalie R. Schmidt

Catholic University Law Review

The Supreme Court has long maligned facial, as opposed to as-applied, challenges to the constitutionality of statutes, warning that they are disfavored and difficult to win. But recently, in his separate opinion in Moody v. NetChoice, LLC, Justice Thomas has launched a stronger attack: facial challenges are improper exercises of the judicial power. Facial challenges, he asserted, require courts to go beyond the case or controversy before them, improperly distort standing doctrine, and thus violate Article III of the U.S. Constitution.

This Symposium Piece addresses Justice Thomas’s charge head on, arguing that facial challenges do not implicate the judicial …

Rethinking Judicial Power & Remedial Restraint, Caprice L. Roberts

Catholic University Law Review

This Article maintains that groundbreaking Supreme Court cases reshaping judicial power and restraint are frequently remedies centric. The much- anticipated ruling in Trump v. CASA illustrates this correlation. Interpreting traditional equity, the Supreme Court circumscribed federal judicial power to issue universal relief. The Court relied on Marbury v. Madison to bolster its reasoning on the limits of judicial power. Ironically, both cases denied any remedy while enhancing the potential for future judicial power. Whether via judicial review and supremacy power or the Court’s future ability to now be the only federal court able to issue universal remedies—the Court’s role in …

Disregarding Severability, Kevin C. Walsh

Catholic University Law Review

The infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts's reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the …

State Constitutional Law: Developments In Georgia Election Law, Bryan P. Tyson, Bryan F. Jacoutot, Diane F. Laross

Mercer Law Review

Since the 2018 election, the election process in Georgia has been subjected to intense scrutiny both on the campaign trail and in the courtroom through a variety of lawsuits. Cases in superior courts and the Supreme Court of Georgia have challenged everything from candidate eligibility to election outcomes to the voting machines used in elections. While much of the highest-profile litigation has been in federal court, state law regarding election administration and post-election contests has developed in significant ways during that time period. This Article reviews some of the most significant cases involving Georgia election law that have made their …

Does Georgia’S Code Have The Force Of Law? Early Codification Practices And Constitutional Questions, Jake Shatzer

Mercer Law Review

In 1858, Georgia’s General Assembly commissioned the state’s first official code. The legislature appointed three men to assemble a lengthy volume that included all the legislative acts that were in force at the time. Besides statutes, the General Assembly also tasked the codifiers with codifying legal principles of the English common law, Georgia Supreme Court decisions, and English statutes that were still in force. As a result, the codifiers inserted hundreds of provisions into the code that they wrote in an attempt to distill these legal principles into statutory form. When the codifiers’ work was done, the General Assembly adopted …

Beyond Gary V. State: Paragraph Xiii And The Future Of Georgia’S Exclusionary Rule, Joshua R. Wright

Mercer Law Review

While lawyers across Georgia routinely file motions to suppress evidence in the state’s superior courts, many may never stop to consider what actually affords their clients that right. Practitioners preparing these motions quickly discover one of the most significant recent developments in modern Georgia criminal law: the debate over the scope of a criminal defendant’s constitutional protection against unreasonable searches and seizures and, more importantly, when courts must suppress evidence obtained in violation of those rights. Will the Georgia Supreme Court overturn Gary v. State in full and adopt a good-faith exception? If so, can criminal defense attorneys look to …

A Conversation With Judge Stephanos Bibas, Stephanos Bibas, Kevin C. Walsh

Catholic University Law Review

On Friday, March 28th, 2025, the Catholic University Law Review hosted its annual spring symposium: Traditional Judicial Power & Doctrinal Development, which included a conversation between Judge Stephanos Bibas and Professor Kevin C. Walsh. The conversation covered topics such as standing, severability, and preliminary injunctions. This is a transcript of the conversation, and the text appears substantially as it was delivered.

The Equity Dead Zones: Legal Intersectionality Failure Points In Chapter 13 Bankruptcy, Tearria N. Simmons

The Guardianship Journal

Legal intersectionality failure points describe the systemic fractures that occur where overlapping legal, social, and economic inequalities converge, potentially producing compounded barriers to relief. Each failure point marks a site of marginalization. In what ways do individuals already recognized as vulnerable in Chapter 13 bankruptcy face a heightened risk when multiple forms of disadvantage intersect? When these intersections combine in mutually reinforcing ways—racial, economic, and relational disparities colliding with structural deficiencies in family, property, and bankruptcy law—does it result in pronounced negative outcomes, and, if so, what are those outcomes? Within this convergence, could there be a space where compounded …