Digital Commons Network^™

Crypto: The Prospect Of Regulatory Competition, Charles M. Yablon

Articles

No abstract provided.

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

First Amendment Fetishism, John M. Kang

Faculty Scholarship

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium

• a White skinhead’s cross burning on the front lawn of a Black family’s house

• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …

The Constitution And Charter In 2022: The Court, The Chief Justice, And Justice Brown, Jamie Cameron

All Papers

Osgoode Hall’s 26^th Annual Constitutional Cases Conference – the 2022 Year in Review – was held on April 14, 2023. This paper is drawn from the Opening Address, which provides an overview of the Supreme Court’s jurisprudence and is a longstanding feature of the conference. As it explains, the Court’s thirteen decisions in 2022 focused almost exclusively on the Charter’s legal rights and remedies, though R. v. Sharma considered and dismissed a claim under s.15, and the Court rendered one decision on public interest standing. The paper provides a quantitative and qualitative analysis of the 2022 jurisprudence, adding …

Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20, Haley Powell

Indiana Journal of Law and Social Equality

Part I will define T.H. Marshall’s theory of citizenship rights and explain how that framework pertains to the denial of social welfare rights in Puerto Rico’s constitution. It will also delineate the larger context of social welfare in the United States using the contract versus charity paradigm posited by two historians, New School Professor Nancy Fraser and New York University Professor Linda Gordon. Part II will explore the legislative history of the Puerto Rican Constitution at the Puerto Rican Constitutional Convention and the U.S. Congress debates following the convention. Part III will examine the ramifications of the removal of Section …

Politicians The Founders Warned You About, Neil Fulton

UC Law Constitutional Quarterly

Many articles have explored the Founders’ intentions regarding the constitutional text. Much less attention has focused on the Founders’ ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

The State Of Our Republic: State Constitutions’ Role In Creating A More Perfect Union, Caroline Bullock

CMC Senior Theses

This thesis situates state constitutionalism in the modern context of federal constitutional paralysis. By tracing patterns of state constitutional development, we find that states were always the fundamental setting of democracy, and there has always been critical action happening at state legislatures, in state courts, and through state constitutional change. State constitutions provide an active means to achieve progress and protect rights not federally enshrined (and thus, endangered by the political process). The use of state constitutions to prescribe ways of life, protect individual and specialized rights, and to limit local governments has always occurred, but with the current federal …

The Fallout Of Sffa V. Harvard And The Future Of Affirmative Action, Agosto Aliaga

CMC Senior Theses

When the Supreme Court ruled race-conscious admissions to be unconstitutional in SFFA v. Harvard, it sent the higher education world into shock. About 200 universities across the nation who featured admissions systems selective enough to where a student’s race impacted their admission probability were forced to restructure their admissions. As media outlets reports on the decision dominated the headlines, the man responsible for the Students for Fair Admissions’ victory, Edward Blum, quietly shifted his attention to his next target, the business world. Blum, a professional plaintiff with the goal of ridding America of race-conscious policies, understands better than anyone that …

For Richer Or Poorer: The Warren Court's Relationship To Socioeconomic Class, Nicole Jonassen

CMC Senior Theses

The U.S. Constitution does not enshrine socioeconomic rights. Why does this matter? Many argue that socioeconomic rights have value in and of themselves because they secure certain minimum conditions of human dignity, but socioeconomic rights also have instrumental value because abject material deprivation often makes traditional political and civil rights meaningless. In this thesis, I explore the relationship between U.S. constitutional law and socioeconomic rights through an analysis of the Warren Court’s decisions regarding socioeconomic class. In Chapter 1, I present existing literature on socioeconomic rights, socioeconomic rights in the American context, and what many scholars see as the Warren …

Does The Constitution Follow The Flag? The Paradox Of Puerto Rican Identity And Citizenship, Laura Somoza Velez

CMC Senior Theses

How do identity and citizenship interact? Puerto Rico’s current political status is that of an unincorporated, organized territory of the United States, under the shiny title of ‘Commonwealth.’ Although they have US Citizenship, Puerto Rican residents aren’t protected by the US Constitution. This source of dual identification, American and Puerto Rican, creates a unique circumstance where questions of identity, and belonging naturally arise. In this thesis, I aim to answer how the citizenship condition created in Puerto Rico and how it is experienced measure up to current debates and scholarship surrounding citizenship. Achieved through a historical analysis of the formation …

From The Barrel To The Border: Exploring The Roots And Ramifications Of Gun Trafficking From The United States To Mexico, Alexandra Punishill

CMC Senior Theses

Nowhere is the discussion surrounding gun violence more prominent than in the United States, with the impacts of our gun-friendly culture being felt around the world. This thesis analyzes the dynamics of gun trafficking from the United States to Mexico and sheds light on its role in fueling the epidemic of gun violence south of the border. It is argued that the particular system of federalism adopted by the United States has led to a variety of state-level gun regulations that have shaped domestic gun policy and have had an international impact. Despite Mexico’s persistent efforts to combat the gun …

Righteous Fury: A Natural Rights Approach To The Individual Right To Bear Arms Under The Ninth And Fourteenth Amendments, Nikhil Agarwal

CMC Senior Theses

The individual right to bear arms for self-defence has been grounded by the modern Supreme Court in the Second Amendment and incorporated against the States by the Due Process Clause of the Fourteenth Amendment. However, a close examination of both the majority and dissenting opinions in each of the three landmark gun-rights cases decided by the Supreme Court this century- DC v. Heller, McDonald v. Chicago, and New York State Rifle & Pistol Association v. Bruen- reveal how difficult is to determine the original meaning of the Second Amendment, and expose weaknesses in the Court’s current substantive due process …

Protecting Minority Representation In An Era Of Political Polarization And The Hollowing Out Of Voting Rights Protections, Henry L. Chambers Jr.

Law Faculty Publications

The United States Supreme Court has hollowed out various voting rights protections, leaving all voters—minority and nonminority—less protected in a politically polarized America. Surprisingly, the Court has continued to protect representation for minority race voters who live in racially polarized areas. However, minority race voters risk losing that protection, typically provided through majority-minority districts authorized under the Voting Rights Act, if they build cross-racial coalitions with their neighbors. Under the Court’s interpretation of the VRA, cross-racial voting coalitions may be less protected than local majorities comprised of a single race of voters. The loss of such protection could leave their …

Becoming The "Bill Of Rights": The First Ten Amendments From Founding To Reconstruction, Kurt T. Lash

Law Faculty Publications

The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a …

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

Protecting Students’ Right To Listen By Statute, Noah C. Chauvin

Journal of Race, Gender, and Ethnicity

This article argues that First Amendment challenges to book bans in public school libraries, based on the right to receive information, are unlikely to succeed. Even if such bans clearly violate students' rights, constitutional litigation is slow and unpredictable, and courts may not consistently support these challenges. Therefore, instead of relying solely on litigation, opponents of book bans should pursue legislative change. The paper proposes a model statute that advocates and legislators can use to ban book bans. It also acknowledges the complexities of terminology and scope, defining "book bans" as decisions to restrict or remove materials from school libraries, …

Indefinite Detention Under Part Xx.1 Of The Criminal Code And Winko V. British Columbia, Jamie Cameron

Articles & Book Chapters

“Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia” is chapter 27 in a textbook titled Canadian Anthology on Mental Health and the Law. It draws on the author’s ten years as a legal member and alternate chair on the Ontario Review Board, as well as on her participation in a research study on perceptions of fairness in ORB proceedings, to provide critical comment on the procedural fairness and constitutionality of forensic detention for mentally disordered criminal offenders (i.e. not criminally responsible (NCR); unfit to stand trial (UST); and dual status offenders …

Reflections On Race, The Constitution, And Growing Up In The Segregated South, Walter Dellinger

Faculty Scholarship

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling.

Note: The …

Domestic Supply (A Feminist Proposal), Jennifer Hendricks

UC Law Constitutional Quarterly

No abstract provided.

Unprecedented: Asian Americans, Harvard, The University Of North Carolina, And The Supreme Court’S Striking Down Of Affirmative Action, Harvey Gee

UC Law Constitutional Quarterly

In response to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al. (“SFFA v. Harvard”),1 author Harvey Gee urges his fellow Asian Americans––the star plaintiffs in the case and depicted as the main beneficiaries of its holdings–– to fight back to preserve affirmative action. Part I explores how the Court’s approach to affirmative action changed from the emergence of the Civil Rights Movement through many of the pivotal affirmative action cases prior to the 2010s. Part II then seeks …

The Purpose And Practice Of Precedent: What The Decade Long Debate Over Stare Decisis Teaches Us About The New Roberts Court, Russell A. Miller

UC Law Constitutional Quarterly

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

Procedural Pluralism: A Model For Enforcing Internal Administrative Law, Daniel Epstein

UC Law Constitutional Quarterly

Much of our federal administrative law relies upon supposedly mandatory procedures that agencies often ignore. So, can the administrative state achieve legitimacy if it is bound by laws that it rarely, if ever, complies with? New data shows that agencies simply ignore administrative procedures without recourse because compliance ultimately depends on who holds power in the administrative state––not congressionally delegated rules or procedures imposed by the President. This article refutes the prevailing assumption that, as the sole powerholder of the entire executive department, the President is responsible for the current state of administrative non-compliance and underenforcement because the President decides …

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Articles

Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

A Major Question For The Sec: Analyzing Constitutional Limits On Regulatory Authority, Matthew Diller, Meredith Berger, Samuel W. Buell, John M. Golden, Suzanne Ashley, Coy Garrison, Aaron Saiger, Suman Naishadham, Mary Jo White

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …

Deepfakes And Dog Toys: First Amendment Defenses Under The Rogers Test After Jack Daniel’S V. Vip Products, Michael D. Murray

Law Faculty Scholarly Articles

Given that deepfakes are almost always associated with expression of some kind, any attempt to litigate or regulate deepfakes will require the consideration of the First Amendment. Deepfakes implicate so many areas of law and society that a discussion of the interface of First Amendment free speech rights and deepfakes writ large would require a treatise volume with several chapters. This article is more modest: It will examine the past, present, and future use of the Rogers test in an evaluation of the application of First Amendment protections in trademark infringement cases and in legal actions traditionally associated with the …

The Future Of Health Care Conscience Law Post-Dobbs, Nadia N. Sawicki

Faculty Publications & Other Works

The Supreme Court's rejection of a constitutional right to choose abortion in Dobbs v. Jackson Women's Health Organization has prompted legislatures to make significant changes to state laws. Some states have criminalized abortion in most circumstances, while others have granted patients and health care providers broader rights to choose and access abortion. Another, perhaps less-recognized, avenue for legislative change is by amending existing state conscience laws. This Article describes the avenues state legislatures might take in using conscience laws to impact abortion access in accordance with the state's policy preferences.