Digital Commons Network^™

A State Constitutional Challenge To Washington’S Denial Of Minimum Wage To Incarcerated Workers, Cailin Dahlin

Washington Law Review

This Comment challenges as unconstitutional Washington’s exemption of incarcerated individuals from the state Minimum Wage Act. Incarcerated people in Washington, unprotected by minimum wage guarantees, earn low wages in state-run inmate work programs. This statutory carveout is contrary to the rehabilitative purpose of Washington’s prisons because it impedes incarcerated people’s ability to afford necessities, participate in rehabilitative programs, and reintegrate into society. This exemption is unconstitutional under the state’s cruel punishment clause, because it is disproportionately cruel punishment and an excessive fine that incarcerated workers cannot afford. The exemption is also unconstitutional under the state’s privileges and immunities clause, because …

The Endorsement Test’S Early Years, 1983–1985: Notes From The O’Connor Files, Jay Wexler

William & Mary Bill of Rights Journal

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Religious Conflicts In Disguise: The Limits Of The Law In Tackling Conflicts With Religious Dimensions, Yael Efron

Cardozo Journal of Conflict Resolution

In previous publications, we have established the crucial differences between conflicts with religious dimensions (CRDs) and other types of conflicts. We claim that a legal solution to CRDs is rarely sufficient to terminate the conflict and often might lead to further damage to communities and persons, sometimes even harsher than the original dispute. Since not all CRDs are similar, a theorized model of their distinguishing elements—time, intensity, and proximity to core values—assists us in differentiating them. By analyzing the elements of CRDs in accordance with the TIV model, we can more easily determine which conflicts are suitable for legal process …

Pursuing Restorative Justice For The Legacy Of Federal Indian Boarding Schools, Jilly Horowitz

Cardozo Journal of Conflict Resolution

This Note examines the United States’ federal boarding school policy, designed to eliminate Native populations, and the federal government’s efforts from June 2021 to December 2024 to acknowledge and address its harms. For 150 years, Native children were subjected to this brutal policy and were removed from their communities and placed in boarding schools. These schools were focused less on providing education and opportunity for Native students, and instead were tools to carry out a concentrated federal policy of cultural assimilation and forcible removal from Native lands. The federal government implemented this policy throughout the country, operating or funding 451 …

Much Ado About Critical Race Theory, Matthew Patrick Shaw

Vanderbilt Law School Faculty Publications

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory

(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither …

Splitting The Statute: Severability As A Canon Of Construction Or Constitutional Concern?, Amy L. Moore

Law Faculty Scholarship

This Article examines the Supreme Court’s evolving severability doctrine and interrogates whether severability is best understood as a canon of statutory construction or as a constitutional limitation on judicial power. Tracing the doctrine from Marbury v. Madison through modern cases such as Champlin Refining Co., Carter Coal, INS v. Chadha, Alaska Airlines, Booker, and Seila Law, the Article demonstrates that the Court has oscillated between an interpretive presumption favoring preservation of legislative enactments and a structural concern about judicial lawmaking. It distinguishes between textual severability—excising unconstitutional statutory provisions—and application severability—limiting unconstitutional applications while preserving …

Do Civil Penalties Punish? The Fbar Penalty And The Case For An Emboldened Excessive Fines Clause, Scott Oatkin

Cardozo Law Review

The Report of Foreign Bank and Financial Accounts (FBAR) regime authorizes the IRS to impose severe penalties—up to the greater of $100,000 or fifty percent of the account balance—for failure to report foreign bank accounts exceeding $10,000. While the Eighth Amendment protects Americans from “excessive fines,” circuit courts are split on whether the FBAR penalty constitutes a fine and is subject to constitutional scrutiny. Some courts have found that the FBAR penalty is wholly remedial and beyond the reach of the Excessive Fines Clause, but this Note argues that such an interpretation is inconsistent with the history and case law …

Criminal Court's Disability, Zohra Ahmed

Faculty Scholarship

Do criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court undermines even the meagre accommodations that the competency framework provides.

Competency proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them. After a finding of incompetency, the …

Interpreting The Private‑ And Public‑Sector Service Criteria For Singapore’S Aspiring Presidential Candidates, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Singapore President's role is not only ceremonial: from 1991, it has encompassed the substantive function of serving as a guardian of public reserves and the integrity of the public service. A person must meet certain qualifying criteria in order to run in a Presidential election. This article focuses on one set of qualifying criteria, namely, the "service criteria": the requirement that candidates have had certain experience in serving in certain roles in the public sector or the private sector. The service criteria were last amended in 2016, and came to the fore in the 2023 Presidential Election following George …

Two Wrongs Don't Make A Right: The Fourth Circuit Sidesteps Supreme Court Precedent In Upholding An Assault Weapon Ban In Bianchi V. Brown, Gabriella Mudd

Villanova Law Review (1956 - )

No abstract provided.

The Section 32(1) Analysis: Clarifying Eldridge In Light Of York Region District School Board, Kate Glover Berger

All Papers

The Eldridge framework, a stable feature of Canadian Charter jurisprudence for decades, sets out part of the framework for determining when entities or activities qualify as “government” under section 32(1), the Charter’s application section. In light of this stability, the Supreme Court of Canada’s analysis of the section 32(1) issue in York Region District School Board v Elementary Teachers Federation of Ontario was surprising. It raised the question: Why did the Court in York Region deviate from well-settled law on the Eldridge framework and, in the process, seemingly change the framework’s thresholds? This question arises because the Court in …

Restoring Chevron Deference By Statute, Scott Dodson

Duke Law Journal Online

This paper details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the …

Wine Unwelcome: The Constitutional Contours Of Wine Regulation, Alexander Fallone

Brooklyn Journal of Corporate, Financial & Commercial Law

Wine retail shops face a dizzying labyrinth of state laws that severely restrict their ability to ship wine to out-of-state consumers. While the dormant Commerce Clause would normally strike down laws that impose restrictions on interstate commerce, wine (and alcoholic beverages) must contend with Section Two of the Twenty-first Amendment, which gives the states control over the importation and distribution of wine intending to be consumed within their borders. Court of Appeals cases interpreting Supreme Court precedent on the tension between the dormant Commerce Clause and Section Two have practically stripped the dormant Commerce Clause of any power. This Note …

Who Owns Your Adventure? A Need For Legislative Clarity For Streamed Performances Of Video Games, Harrison Busalacchi

Brooklyn Journal of Corporate, Financial & Commercial Law

Video games contain copyrighted material that could easily be infringed upon by people streaming a performance of them playing the game. However, the streamers can protect themselves from infringement liability by transforming the content in some form or fashion such that their performance constitutes “fair use” of the copyrighted material. This is often accomplished by the streamer providing commentary while playing the game or adding a small video of themselves in the corner of the stream so that the viewers can see the streamers’ reactions to the content. With artificial intelligence seeing exponential growth in the past couple of years …

Emission Impossible: Challenging The Imposition Of New York City’S Local Law 97, Daniel Lopiccolo

Brooklyn Journal of Corporate, Financial & Commercial Law

New York City’s Local Law 97 was passed by the City Council in 2019 with the goal of reducing citywide carbon emissions. The law imposes civil penalties on property owners whose buildings fail to comply with carbon emissions limits stipulated by the city. While the law admirably aims to minimize New York’s carbon footprint, its present burden is excessive and disproportionate to the offense committed, making the cost of affording lower and middle-class housing units increasingly untenable for many New Yorkers, especially for property owners in co-op and condo communities. Many such as Glen Oaks Village Owners, Inc., the plaintiffs …

303 Creative For Everyone?, Mark Satta

West Virginia Law Review

Does the holding in 303 Creative v. Elenis give businesses open to the public a constitutional right to refuse to provide expressive services for interracial couples’ weddings, interfaith couples’ weddings, or for couples’ weddings in which one or both partners are disabled? As indicated by questions raised during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s 303 Creative decision where the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings. Understandably, both the Court’s conservative …

The Worker Fight Against Compelled Listening: The Past, Present, And Future Of Captive Audience Meetings In The Wake Of Amazon.Com, Hailey Simpson

Nevada Law Journal

No abstract provided.

Reconciling Tenure And Faculty Accountability, Stuart Chinn

West Virginia Law Review

Part of the very identity of the American university is its insulation from society—a crucial contributor, at least in some instances, toward facilitating the search for knowledge and the disruption of established orthodoxies. Yet American higher education does not exist and cannot function separately from societal pressures. This is most obviously true in the context of public institutions that directly rely on state governmental entities for financial support and that may be subject to some mechanisms of control by governmental actors or their appointees. But it is also obviously true in the context of private institutions that may rely on …

Queer And Present Danger: Reconceiving Arkansas’S Artificial Insemination Laws To Protect Lgbtq Families, Chacey Schoeppel Wilcox

University of Arkansas at Little Rock Law Review

No abstract provided.

Joinder, Not Jurisdiction: Toward A New Theory Of Standing, Adam N. Steinman

Faculty Scholarship

This Article builds on an important development in the Supreme Court’s standing jurisprudence to propose a novel theory that would allow more meaningful access to federal courts while vindicating legitimate separation-of-powers concerns. In its recent decision in TransUnion LLC v. Ramirez, the Supreme Court endorsed a theory of standing based on Article II, writing that litigation between private parties—even when explicitly authorized by Congress—can run afoul of the executive branch’s interest in “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” This Article II move has been justifiably criticized. But it is …

Civil Servant Disobedience: An Alternative Legal Strategy To Prevent Bureaucratic Pathology, Richo Andi Wibowo

The Indonesian Journal of Socio-Legal Studies

This paper seeks to provide conceptual and empirical justifications for civil servants to engage in disobedience to curb bureaucratic pathology. Various civil servants have long complained that they face illegal instructions from their superiors. The cases discussed here are from public procurement, which has a dimension of political corruption, a recurring problem in many places in Indonesia. Thus, the problem shall be seen as a bureaucratic pathology rather than as maladministration. As the reporting of superiors to legal enforcers may be too risky, the disobedience can be accomplished by refusing to cooperate with superiors who give illegal instructions. The term …

Bank Supervision And Article Ii, Kathryn Judge

Faculty Scholarship

The administrative state is again at a cross roads. The Supreme Court seems poised to continue its march toward trying to fit all of government neatly into one of the three constitutionally enumerated branches. An important front of this shift has been a flattening of the mechanisms through which officers of the United States may be held appropriately accountable for their actions. Waning are the days when Congress had the flexibility to create the institutions it believed were “necessary and proper” for carrying into execution important policy aims and to determine the appropriate mechanisms for accountability in conjunction with considering …

Amicus In Trump V. Cook: The Fed, Offices As Property, And The Meaning Of “Cause”, Jed Handelsman Shugerman

Faculty Scholarship

The Federal Reserve Act states that “each member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President.” 12 U.S.C. § 242. Based on the historical record, when Congress creates an office with a fixed term of years and protects against removal without “cause,” Congress has both granted “a constitutionally protected property interest” under the Fifth Amendment (that cannot be taken away without “due process”) and extended a statutory entitlement to receive fair notice and a meaningful opportunity to respond before any removal may …

Doing Away With Racial Profiling In Policing Without Doing Away With The Rule Of Law, François Tanguay-Renaud

All Papers

Since the turn of the millennium, Canadian appellate courts have been investing increasingly systematic efforts in demystifying and curtailing racial profiling in policing. These judicial efforts have so far been focused on the application of the legal criteria for arrest and detention as well as their regulation under section 9 of the Canadian Charter of Rights and Freedoms. In this article, I contend that this unidimensional approach is unsound and outline a corrective path forward. First, I argue that the prevailing judicial understanding of what racial profiling is and how it affects the lawfulness of arrests and detentions has the …

Standing On Stare Decisis After Students For Fair Admissions, Areeb Asif, Lindsey Roloff

Northwestern University Law Review

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, …

Toward A Perpetual Practice Of Affirmative Action, Sheldon Bernard Lyke

Northwestern University Law Review

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited …

Infrastructure Equality, Deborah N. Archer, Yuvraj Joshi

Northwestern University Law Review

The United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should …

An Alternate History Of Chevron, With A Lesson For Today, Michael Herz

Fordham Environmental Law Review

It is a banal truism that judicial deference to agency decisionmaking enables the executive branch to pursue its agenda, whatever that agenda may be. That was obvious to all in the early years of the Chevron decision, which was greeted enthusiastically on the right and skeptically on the left. In Chevron itself, and for a while thereafter, deference advanced the Reagan deregulatory program. Over the years, a subtler conclusion gained consensus: overall and in the long haul, judicial deference is likely to have a net pro-regulatory impact. Hence the right’s hardened opposition to Chevron leading up to its demise. But …

Statelessness As An Academic Concern: The Indian Supreme Court’S Engagement With Citizenship Policy In In Re: Section 6a Of The Citizenship Act, 1955, Aishwarya Birla

Articles

In October 2024, the Supreme Court of India (‘Court’) made a significant ruling regarding citizenship laws in Assam, a state in the north-east of the country. The case In Re: Section 6Aof the Citizenship Act, 1955(‘In Re: s 6A’)centred on s 6A of the Citizenship Act, 1955(‘Citizenship Act’), which pertains to granting citizenship to a specific class of migrants who entered Assam before ‘the 1stday of January, 1966’.The Supreme Court upheld the constitutional validity of s 6A in a 4:1 majority. In doing so, the Court also engaged with a multitude of important issues for constitutional law and citizenship in …