Digital Commons Network^™

On Teaching Constitutional Law: Challenges And Opportunities, Christopher W. Schmidt

Chicago-Kent Law Review

No abstract provided.

Teaching Constitutional Change, Carolyn Shapiro

Chicago-Kent Law Review

No abstract provided.

From Constitutional Law To Constitutional Change, Steven D. Schwinn

Chicago-Kent Law Review

No abstract provided.

Whatcha Gonna Do When They Come For You? Assessing The Damage Associated With The Rise Of Reality Tv Policing And Proposing Avenues For Accountability And Reform, Danielle Taylor

Chicago-Kent Law Review

No abstract provided.

The Ugly Rhetoric Of Dobbs, Or, Why Jack Balkin Is History, Andrew Koppelman

William & Mary Bill of Rights Journal

This Essay has three claims. First, I want to emphasize an underappreciated ethical virtue elicited by the practice of rhetoric: it demands that the speaker get out of his own head and focus on his audience and what they care about. History matters because it speaks to us. It tells us who we are and why we are doing what we are doing. The rhetorical deployment of historical narrative in political discourse can help to forge a collective identity in which we all can recognize ourselves, and so make the polity more inclusive. Second, if this aspect of rhetoric is …

Originalism's Selection Problem, Darrell A.H. Miller

William & Mary Bill of Rights Journal

This Essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.

This abstract has been taken from the author's introduction.

Defining Law But Not Justice, Franciska Coleman

Chicago-Kent Law Review

No abstract provided.

The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment On Kunal Kamra V. Union Of India, Abhinav Ravi, Aravind Sundar

National Law School of India Review

The Bombay High Court in Kunal Kamra v Union of India struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which had established a centralised fact-checking unit to issue takedown orders against social media posts that were identified as “fake or false or misleading”. The Rules threatened the safe harbour protection of social media intermediaries for failing to adhere to such takedown orders. The Court held that the establishment of the fact-check unit violates the rights of free speech, profession and equality under the Indian Constitution. This article explores the free speech implications of …

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Shared Memories And Constitutional Foundations, Sanford Levinson

William & Mary Bill of Rights Journal

It is significant that the first word in the title of Jack Balkin’s new book [Memory and Authority] is “memory.” A repeated theme of the book is that what binds a nation—or a constitutional order—together is shared memories around which diverse individuals can gather together and therefore establish themselves as a community. Balkin refers to an impressive array of sources with regard to the topic of “public memory,” but I want to concentrate on one of them, which is cited but not extensively discussed. That is Ernest Renan’s famous speech, delivered at the Sorbonne in Paris on March …

Reconceptualizing Property Law's Background Principles In Takings Law, Timothy M. Mulvaney

Faculty Scholarship

Both libertarians and progressives celebrated the result in Tyler v. Hennepin County. This Article asserts that this unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the property laws endorsed by a majority of states rather than in the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations …

Nil Enforcement Preemption, Josh Lens

Utah Law Review

The National Collegiate Athletic Association (NCAA), which serves as the multibillion-dollar college athletics industry’s primary governing body, has faced several recent legal challenges to its operations. One particularly prominent challenge projects to result in litigation that will significantly impact college athletics’s future. This article explores the circumstances that led to this precarious position: (1) the NCAA’s recent changes to its longstanding rules prohibiting student-athlete compensation for use of their names, images, and likenesses; (2) several state legislatures’ attempts to provide universities in their states with a competitive advantage by legislating restrictions on the NCAA’s ability to enforce its rules; and …

The Constitutional Meaning Of Financial Terms, Tomer Stein, Shelby Ponton

Utah Law Review

The Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution which comprises two fundamental canons of construction.

First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does …

One Is Not Enough: Session, The Social Status Provision, And Consistent And Definitive Constructions, Miles C. Skedsvold

Mercer Law Review

Originalism really is “a theory working itself pure.” But most of the blood, sweat, and tears in the enterprise are spilled over the federal constitution. At least partially as a result of those efforts, though, more and more important legal questions are examined under state law—and in particular, state constitutions. And so it is more important than ever to work through the hard methodological questions that will help produce answers. Presiding Justice Nels S.D. Peterson’s landmark article “Principles of Georgia Constitutional Interpretation” breaks key ground in this area—and this Article aims to take the shovel and keep digging. ...

Thus, …

Textualism In Practice, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the …

Violence In The Administrative State, Emily R. Chertoff

Georgetown Law Faculty Publications and Other Works

Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law. Approximately one-fifth of federal employees work for administrative agencies that police, fight wars, enforce immigration law, or incarcerate people—in other words, agencies that use force to execute the laws. These agencies are saturated with administrative law that obligates front-line administrators to confer due process, give notice, behave non-arbitrarily, and comply with law. Yet this law often fails to …

Understanding The Equality Of Parties In Arbitration: A Case Comment On International Seaport Dredging Private Limited V Kamarajar Port Limited, Sahana Ramesh

National Law School Journal

While the Supreme Court of India has emphasised the equality of arbitrating parties in several decisions, the court often had to use various tools to assert this. It is a question of policy as to whether statutory undertakings—that perform public functions by entering commercial transactions—must be given preferential treatment in certain aspects of the dispute settlement process, including when they choose to challenge an arbitral award. This case comment considers the decision of the Supreme Court of India in International Seaport Dredging Private Limited v Kamarajar Port Limited to highlight the nuances involved in the court’s conclusion that all …

Reimagining Constitutional Institutions: Integrity, Efficiency, And Accountability (Justice Es Venkataramiah Centennial Memorial Lecture), Justice Ps Narasimha

National Law School Journal

In this 'Justice ES Venkataramiah Centennial Memorial Lecture' delivered at the National Law School of India University in 2024, Justice PS Narasimha lays down the importance of fourth branch institutions. He points to the constitutional history and framework that established them, lays down their evolution, and examines their role and functioning in the current context.

Brief Of First Amendment And Internet Law Professors As Amici Curiae In Support Of Petitioners, Tiktok Inc. V. Garland, No. 24-656 (U.S. 2025)., Shubhangi Agarwalla, Enrique Armijo, Kevin Bankston, Susan Benesch, Ashutosh Bhagwat, Stuart N. Brotman, Ryan Calo, Anupam Chander, Erwin Chemerinsky, Alan K. Chen, David Craig, Eric Goldman, Gregory Gondwe, James Grimmelmann, Nikolas Guggenberger, G.S. Hans, Robert A. Heverly, Thomas E. Kadri, David Kaye, Heidi Kitrosser, Vivek Krishnamurthy, Edward Lee, Mark A. Lemley, David S. Levine, Yvette Joy Liebesman, Gregory P. Magarian, Jess Miers, Sean O’Brien, Mary-Rose Papandrea, Kermit Roosevelt, Jennifer Safstrom, Pamela Samuelson, Madhavi Sunder, Christopher Jon Sprigman, Jordi Weinstock

Con Law Center Amicus Briefs

“Without freedom of thought, there can be no such thing as wisdom, and no such thing as public liberty, without freedom of speech.” Benjamin Franklin, Silence Dogwood, No. 8 (July 9, 1722). For this reason, the U.S. Constitution makes clear that the Government cannot abridge free speech based on its content or viewpoint absent compelling and narrowly tailored grounds. Indeed, the protection of all speech is foundational to American democracy. See United States v. Schwimmer, 279 U.S. 644, 654–55 (1929) (Holmes, J., dissenting) (“[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other …

Colonizing By Contract, Emmanuel Hiram Arnaud

Faculty Scholarship

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Religious Accommodations For Educators: A Reexamination Of Undue Burden In The Public School Classroom, Maggie L. Paino, Suzanne Eckes

ConLawNOW

This Essay addresses the question of how public schools should address existing tensions between employee religious rights and student identity and expression when a teacher refuses to use a student’s chosen name and pronouns. Guiding this issue and the practice for public school officials to follow is a 2024 decision of a federal district court in Kluge v. Brownsburg Community School District, and guidance published by the Equal Employment Opportunity Commission. While the court in Kluge recognized the substantial increased costs to the school of granting the religious accommodation when students are involved, the EEOC affirmed the need to …

The Last Word On The Ohio Constitution, Jonathan L. Entin

Et Cetera

This essay offers a detailed overview of Steinglass & Scarselli’s significantly revised and expanded second edition of The Ohio Constitution, the leading analysis of that subject. The essay explores some broad themes, including judicial review, judicial independence, the relationship between the judiciary and the political branches of Ohio government, separation of powers, race and gender, the new judicial federalism, and the process for amending the Ohio Constitution. The book is an extraordinary resource for the Ohio bench and bar as well as for the general public. The essay explains why that is so and suggests that readers will use this …

The Basis For Election Exceptionalism In Justiciability And Related Doctrines: Constitutional Compensation In Light Of Purcell, Vikram D. Amar, Evan H. Caminker

Articles

Pursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the run-up to Election Day. Whether or not the Purcell rule’s purported justifications are persuasive (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) even when serious doubt exists about the legality of the contests under federal statutes and the Constitution. Because of these …

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

A Proposal To Rebalance Direct Democracy In The Ohio Constitution, Mark Wagoner

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Improper Indeterminate Incarceration: Navigating The Constitutional Quandaries Of The Reagan Tokes Law's Powers And Procedures, Sophie M. Piteo

Cleveland State Law Review

This Article advocates for an amendment to the statutory provisions that make up Ohio’s indefinite sentencing scheme to better protect offender’s constitutional rights. Through an analysis of the Reagan Tokes Law and the Ohio Supreme Court’s ruling in State v. Hacker, this Article traces the evolution of Ohio’s indefinite sentencing framework, which was reinstated in 2019. It contrasts the current scheme with the previously invalidated, but very similar, Bad Time Law, which was struck down in 2000 for violating the separation of powers clause and due process rights. While the Reagan Tokes Law emerged from concerns for public safety …

Direct Democracy: Ohio Style, Steven H. Steinglass, Ernest M. Oleksy

Cleveland State Law Review

This Article is an expansion of comments by Steven H. Steinglass at a Symposium on Democracy sponsored by the Cleveland State Law Review and held on October 27, 2023. The Symposium looked broadly at threats to democracy, but the panel on which he participated focused more narrowly on the Ohio Constitution and Democracy. The Article reviews the history of direct democracy in Ohio with an emphasis on the constitutional initiative. Part I of this Article discusses the historical origins of direct democracy in Ohio and the iconic Ohio Constitutional Convention of 1912 that proposed Ohio’s direct democracy amendment. Particular …

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.