Digital Commons Network^™

Democratizing Constitutional Memory, Reva B. Siegel

Michigan Law Review

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion in its 2021 term and to threaten other rights since. The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

Constitutional Iconoclasm, Andrew J. Lanham

Michigan Law Review

A review of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. By Aziz Rana.

Exorcising Hobbes’S Ghost: A Future For Constitutional And International Law, Monica Hakimi

Michigan Law Review

A review of Law for Leviathan: Constitutional Law, International Law, and the State. By Daryl Levinson.

Some Realism About Originalism, William J. Novak

Michigan Law Review

A review of Memory and Authority: The Uses of History in Constitutional Interpretation. By Jack M. Balkin.

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

Articles

In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Beyond Non-Recognition: U.S.–Taiwan Trade Agreements In Indo-Pacific Dynamics, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

At the core of U.S.-China tensions and the Indo-Pacific strategy, the evolving legal frameworks that govern U.S.-Taiwan relations present legal intricacies under American and international law. The Article provides the first comprehensive analysis of the groundbreaking U.S.-Taiwan Initiative on 21st-Century Trade, the only Congress-approved trade agreement during the Biden administration. It argues that within the space of non-recognition, the United States has accorded Taiwan diverse and incremental forms of legal recognition, which culminated in the Initiative and its Implementation Act. Through an interdisciplinary lens, the Article develops a theoretical framework that bridges recognition theories under international law and international relations. …

Disabled And Disenfranchised: The Fight For Reproductive Freedom And Democracy Post-Dobbs, Robyn M. Powell

Cardozo Law Review

The Supreme Court has thrust abortion onto ballots nationwide, transforming fundamental rights into political battlegrounds. In the aftermath of Dobbs v. Jackson Women's Health Organization, people with disabilities face a perfect storm of eroded reproductive freedoms and persistent barriers to democratic participation. This Article exposes the hollow promise of the Court's purported deference to "the people's elected representatives," revealing instead a landscape where those most affected by abortion restrictions struggle to have their voices heard. The Court's invocation of democracy is arguably disingenuous, serving more as a rhetorical device than agenuine commitment to democratic principles. Nevertheless, engaging with this …

U.S. Territories And The Criminal Law Curriculum, Emmanuel H. Arnaud

Articles

No abstract provided.

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

Articles

Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …

Disqualification, Immunity, And The Presidency, Gillian E. Metzger

Faculty Scholarship

Trump v. Anderson and Trump v. United States were two momentous decisions in a momentous Supreme Court term. Sharing then former — and now current — President Trump as a party, the decisions hold important implications for presidential power and accountability.

Anderson arose from a suit brought by Colorado voters to challenge Trump’s inclusion on the Republican primary ballot in that state. They argued that Trump organized and incited the mob that attacked the Capitol on January 6, 2021, and disrupted the Electoral College vote count and certification. In their view, this disqualified him from serving as President under section …

Guaranteeing The Press, Jacob M. Schriner-Briggs

St. John's Law Review

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty.

Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second …

Making Their Mark: Women Judges On The U.S. Courts Of Appeals, Laura P. Moyer, John Szmer, Susan Haire, Robert Christensen

ConLawNOW

Women who reach the bench in the U.S. Courts of Appeals have endured the gauntlet of law school, legal practice, and Senate confirmation to secure their prestigious place in the federal judiciary. How do these exceptional individuals approach their role in shaping judicial policy—and how do their colleagues receive their work? In this paper, we will draw on findings from an original dataset of published decisions from 2009-2016 that suggests that women judges invest more time and effort in crafting majority opinions than their male counterparts, but that this investment has a comparatively lower yield in influencing the development of …

From Civic Duties To Democratic Mandates: The Theoretical Framework Of Mill And Tocqueville On Compulsory Voting In The U.S., Olivia Claire Luttrell

Undergraduate Honors Theses

This thesis examines the treatment of jury duty and voting in the United States through the philosophical framework of John Stuart Mill and Alexis de Tocqueville. While jury duty is legally mandated, voting remains optional, despite both civic responsibilities being foundational to democratic participation. This research explores the historical, theoretical, and practical implications of voting becoming compulsory in the United States, as it is in other democratic nations. The analysis includes a comparative case study of the impact of Australia’s mandatory voting to evaluate whether it could become compulsory in the U.S. Both philosophers offer insightful knowledge on the role …

Quo Vadis Hak Atas Kesehatan Reproduksi: Analisis Rekonstruksi Pengaturan Aborsi Di Indonesia (Perbandingan Hukum Indonesia Dengan Perancis), Dian Kencana Putri, Erna Dyah Kusumawati

Jurnal Hukum & Pembangunan

Pembatasan akses aborsi di Indonesia menyebabkan banyak perempuan dengan kehamilan tidak diinginkan terpaksa berhadapan dengan hukum. Pembatasan aborsi yang mengakibatkan kriminalisasi ini dapat menyebabkan dilema moral bagi banyak perempuan yang mengalami kehamilan tidak diinginkan. Padahal aborsi berpotensi terjadi pada setiap perempuan berusia produktif di Indonesia. Aborsi di Indonesia merupakan tindakan ilegal dan aborsi hanya dapat dilakukan dalam dua kondisi saja, yakni kedaruratan medis dan kehamilan yang disebabkan perkosaan. Artikel ini menganalisa bagaimana sebenarnya substansi aborsi dapat dimasukkan pada kategori hak kesehatan reproduksi perempuan dan mengapa negara Indonesia perlu mengubah kebijakan dan hukum mengenai aborsi. Untuk melihat seberapa pentingnya negara harus …

Review Of Laboratories Of Autocracy: A Wake-Up Call From Behind The Lines, Neal Allen, Philip Pfeiffer

The Journal of Social Encounters

No abstract provided.

Some Issues In Armed Conflict And Human Rights: Issues Toward Human Rights And Applicable Law In The Battlefield, Hiroshi Saito

Japanese Society and Culture

In recent years, Japan’s legal system regarding defense has improved, but little research has been conducted on what would happen if Japanese territory became a battlefield. Due to the Japan–US Security Treaty and the Japan–US Status of Forces Agreement, Japanese territory could technically become a space for armed conflict in the wake of US military action. If this happened, various legal issues would arise, but under the Japanese Constitution and domestic laws, which are primarily concerned with the protection of human rights, there would be a dual application of international humanitarian law and domestic laws including the Constitution. An important …

Application Of Philosophy In Substantive Due Process Analysis Focusing On Washington V. Glucksberg, Amelia Schwensen

Honors Program: Senior Projects (Public)

Substantive due process is widely regarded as the most convoluted and controversial legal concept. For years, the court has struggled to interpret and apply value-based terms in the Fourteenth Amendment, as these terms contain deeper significance beyond the words. Additionally, the court must balance expanding the law to enshrine the abstract values of substantive due process and limiting its interpretation so that it is not “creating law” or imposing its personal beliefs on its decision. This push and pull of defending values and maintaining legitimacy has created significant issues in substantive due process analysis and is the background and basis …

An Analysis Of Federal Drug-Related Civil Forfeiture, Susan J. Parcels

Maine Law Review

Drug Enforcement Administration Special Agent Arthur J. Goldenbaum participated in a raid at the home of Mrs. Edna Salas, arrested her husband, and charged him with possession of heroin. Pursuant to a warrant, Goldenbaum searched the Salas's 1975 Mercedes and found four marijuana cigarette butts in the ashtray. The government seized the Mercedes, sold it, and collected the proceeds. This is an example of forfeiture-the loss of goods to the government as a result of the commission of a crime-under the federal drug laws. This Comment examines federal civil forfeiture statutes applicable to drug trafficking. The widespread judicial reluctance to …

Criminal Contempt In Maine: Constitutionally Protected Or Neglected?, Christopher D. Hardy

Maine Law Review

The power to punish contempt of court is an ancient power justified as inherent and necessary for the effective administration of justice. Because criminal contempts are willful challenges to the power of a court to maintain control over its proceedings, contempts are acts which serve to lessen the dignity and authority of the court. Certainly, the maintenance of decorum in the courtrooms is of paramount importance. Absent the ability to sanction willful disobedience, a court is powerless to enforce its decrees or control its proceedings. Yet it is a power readily open to abuse; application of this power must be …

Presumptions Against Criminal Defendants, Affirmative Defenses, And A Substantive Due Process Interpretation Of County Court Of Ulster V. Allen, John C. Sheldon

Maine Law Review

In County Court of Ulster County v. Allen, the Supreme Court stated: "inferences and presumptions are a staple of our adversary system of factfinding." Because Allen concerned the constitutionality of the use against criminal defendants of such deductive devices as statutory inferences and presumptions, it appeared that the decision would ultimately favor their unrestricted use in criminal cases by the prosecution. Further, that expectation was buttressed by the ruling in Patterson v. New York, in which the Court awarded constitutional sanction to state use of affirmative defenses against criminal defendants. These facts suggested that the Court would refrain from imposing …

Get Your Act Together: The Alternative Fines Act In Federal Prosecutions Of Corporate Environmental Crimes, Josiah B. Harmar

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Occupy, Nicholas Marti

Nebraska Journal on Advancing Justice

No abstract provided.

Rise Re-Entry Program, Rise Artists

Nebraska Journal on Advancing Justice

No abstract provided.

Airport Milk Justice, Elsbeth Magilton

Nebraska Journal on Advancing Justice

This creative and personal Essay explores the complex and often overlooked experience of a new working mother. Through a series of personal stories featuring airports and security personnel, this author navigates the struggles and lack of support from society for breastfeeding on-the-go. Ultimately, the author was able to use these personal experiences and turn them into a positive advocacy mission for herself and for other working mothers across the United States by finding solutions and reaching out to airport regulators. This piece highlights candidly the intersection between motherhood and the professional world by illustrating the difficulties and evolving expectations for …

A Love Letter To The Leaders: Why Recognizing And Discussing Secondary Trauma In Legal Work Will Benefit Your Staff, Your Clients, And Most Importantly, The Work, Isabel Corngold, Elizabeth Cole

Nebraska Journal on Advancing Justice

When you work in a client-facing, client-centered section of the law like criminal law, and specifically wrongful convictions, you encounter trauma. Many organizations, including innocence organizations, do not do a sufficient job to recognize and address the impact of that trauma on their staff. This piece seeks to explain the potential impact of this trauma by, one, defining the terms burnout; secondary and vicarious trauma; empathetic distress; countertransference; and compassion fatigue, and, two, listing out signs and symptoms that can be caused by experiencing any of these emotions. Drawing from the authors’ experiences in innocence organizations, this piece addresses leaders …

Extraterritorial Civil Liability After Mallory: A Potential New Weapon For Anti-Abortion States In The Interstate Abortion War, Velma Lockman

Nebraska Journal on Advancing Justice

Dobbs v. Jackson Women’s Health Organization marked the culmination of a decades-long movement to overturn the constitutional right to abortion established in Roe v. Wade. The decision commenced an interstate abortion war, in which anti-abortion states are now seeking to enforce their anti-abortion statutes in pro-abortion states. One such statute is Senate Bill 8 (“S.B.8”), a Texas anti-abortion statute that utilizes civil liability to prosecute anyone for “aiding or abetting” abortion.

The year after Dobbs, the Supreme Court issued their opinion in Mallory v. Norfolk Southern Railway Company, which upheld a Pennsylvania consent-by-registration statute and allows Pennsylvania courts to exercise …

Ecarrots: Prison Control And Profits From Correctional Tablets, Justin Iverson

Nebraska Journal on Advancing Justice

In recent years, tablets have gained tremendous popularity behind bars for their ability to expand access to educational and rehabilitative services for people in prison. However, there are downsides to tablet implementation, including high costs at the expense of a captive population and shifting power dynamics resulting in possible volatility. This Article examines the use of correctional tablets in jails and prisons as mechanisms for administrative control and profit-making in an era of beleaguered correctional budgets. It also considers legal and policy implications related to the disproportionately negative impact of the introduction of tablets on people in poverty, increased dependency …

Forewords To The Inaugural Issue, Njaj Editorial Board, Richard Moberly, Stefanie S. Pearlman, Kala Mueller, Danielle Jefferis, Brooklyn Terrill

Nebraska Journal on Advancing Justice

No abstract provided.

2024-25 Masthead, Njaj Editorial Board

Nebraska Journal on Advancing Justice

No abstract provided.

Stipulations Of Law And Agency Independence, Jack Ferguson

Pepperdine Law Review

The Supreme Court granted certiorari in SEC v. Jarkesy to consider whether good-cause removal protections for SEC administrative law judges violate the Constitution, but ultimately left the question unanswered. The lower court holding that the removal protections are unconstitutional remains on the books for now, neither affirmed nor reversed. And a circuit split lives on. The removal power question is likely headed back to the Supreme Court before long. This Essay examines a key premise of the Jarkesy litigation and its leading precedent, the 2010 case Free Enterprise Fund v. Public Co. Accounting Oversight Board. In both cases, the parties …