Digital Commons Network^™

The Establishment Clause And The Ten Commandments Post-Lemon, Richard Kato

Northern Illinois University Law Review

Louisiana recently passed a law requiring that a display of the Ten Commandments be placed in all public school classrooms in the state. The law is currently facing an Establishment Clause challenge in the Fifth Circuit. This Comment argues that Louisiana’s Ten Commandments law does not violate the original public meaning of the Establishment Clause. The history of the Establishment Clause suggests that noncoercive support of religion was widely accepted before and up through the time of the First Amendment’s enactment. Following Kennedy v. Bremerton School District’s abandonment of the Lemon v. Kurtzman test, the Ten Commandments law must …

The Unitary Executive And The Federal Reserve, Lev Menand

Fordham Law Review

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation—known as the unitary executive theory (UET)—would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the country’s central banking apparatus …

The Supreme Court, Regime Politics, And Federalism: From The New Deal To The Trump Era, J. Mitchell Pickerill, Lilly A. Pickerill

Northern Illinois University Law Review

In the 1990s, the conservative majority on the Rehnquist Court championed state sovereignty and autonomy in a series of cases some commentators dubbed a “federalism revolution.” The Supreme Court crafted constitutional doctrines under the Commerce Clause, Tenth and Eleventh Amendments, and Section Five of the Fourteenth Amendment that limited federal powers while protecting or bolstering state powers. The Court’s doctrines in those cases diverged from its approach to constitutional federalism since the New Deal in the 1930s, but it tracked with the conservative Republican political agenda promoting a “new federalism” going back to Presidents Nixon and Reagan. However, as the …

Beyond Skrmetti: A Constitutional Case For Gender-Affirming Care, Mateo-Luis A. Planas, Evan Gerstmann

Honors Thesis

In 2025, roughly 2.1 million adults in America identify as transgender, making up around 1% of the country’s total population. Despite this, the transgender identity has become a focus of political debates and made its way onto the U.S. Supreme Court’s docket in U.S. v. Skrmetti. The issue is not whether transgender people exist, but rather, how they ought to exist legally: if and when one can access medical care to pursue a gender transition. While many American doctors agree that these treatments are life-saving, since 2021, a slew of legislation has limited access for adults 18-21 (AMA, 2021). This …

A Thumb On The Scales: How The Court Creates Presumptions To Change The Law, John Leubsdorf

Northern Illinois University Law Review

In four major recent decisions, the Supreme Court deployed the same technique: it created a presumption in favor of the result it preferred and then concluded that the losing party could not rebut that presumption. This invocation of presumptions enabled the majority to reach the result it preferred, while maintaining the appearance of balance and leaving open the possibility of different rulings in future cases. The asserted grounds for erecting the Court’s presumptions-notably history and governmental structure-likewise combined the appearance of objectivity with the reality of choice. Judicial presumptions are not new, but the current Court deploys them on a …

Drug War Repairs Guarantees, Amber Baylor

Faculty Scholarship

Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.

Legalization cannot deliver on its reparative terms without guarantees. …

Unconstitutional Cruelty, Michael R. Ulrich

William & Mary Law Review

Despite the long history of transgender people and transgender care, state legislatures suddenly rushed to pass a wave of bans on gender-affirming medical care for trans youth over a three-year period beginning in 2021—an alarming surge within a flurry of legal attacks on the transgender community. In analyzing the constitutionality of these bans, courts and scholars have focused their attention on how to characterize the nature of the rights implicated, and therefore the level of scrutiny warranted. This focus reacts to, and often follows, the current Supreme Court majority’s approach to questions about the rights of historically oppressed and marginalized …

Reorganizing The Administrative State: Executive Ambition And Legislative Constraint, Jordan Graber

Fordham Law Review

Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state.

Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of …

Rethinking The Scope Of State Power: Territorial Jurisdiction, Popular Sovereignty, And Extraterritorial Legislation, Jeffrey Schmitt

William & Mary Law Review

The Supreme Court applies the territorial framework of international law to resolve disputes over the reach of state power. Under this framework, a state’s power is coterminous with its borders, such that a state’s regulatory power within its territory is limited only by federal law. The Court recently used this framework to overrule an obscure line of Dormant Commerce Clause cases that held that a state regulation of local conduct could have impermissible extraterritorial effects.

This Article argues that the territorial model of state power from international law does not account for the division of sovereignty within our federal system. …

Statutory Backups For Endangered Constitutional Rights, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the phenomenon of “statutory backup rights,” or statutes that provide protections parallel to constitutional rights that are believed to be at risk of judicial abrogation. Proposals for backup rights gained attention in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which not only eliminated the constitutional right to abortion but called into question some other constitutional rights as well. Shortly after Dobbs, Congress enacted a limited statutory backup for same-sex marriage. States have created backup rights across a range of topics, some of which appeal mostly to those …

Expressive Association At Work, Elizabeth Sepper, James D. Nelson, Charlotte Garden

Michigan Law Review

Do employers have constitutional rights of expressive association? Two decades ago, in Boy Scouts of America v. Dale, the Supreme Court held that a state law prohibiting discrimination based on sexual orientation could not be applied to a membership organization that wished to exclude a gay leader. Today, courts face a rising tide of claims from employers, who argue that Dale constitutionally insulates their hiring and firing decisions from antidiscrimination law. A narrow majority of courts have denied such claims, holding that Dale does not apply at work. Increasingly, however, courts are siding with these employers, eliding any distinction …

An Analysis Of Global And Regional Human Rights Standards On Gender-Based Violence, Tamar Ezer, R. Denisse Córdova Montes

Seattle Journal for Social Justice

No abstract provided.

A Concerted Effort: How The Roberts Court Demolished Anti-Gerrymandering Protections, Samuel Ogden

Seattle Journal for Social Justice

No abstract provided.

The Zoom Dock Is Worse Than A Cage: Remote Appearances From Jail Are Unconstitutional In Washington, Michael Mactaggert, Jeremiah Noonan

Seattle Journal for Social Justice

No abstract provided.

Supreme Court And Presidentialism: When Judges Stand In The President’S Way, Michael Procopio Avelar

LL.M. Essays & Theses

This article examines the conditions under which constitutional courts are able to resist executive attempts at institutional capture during periods of democratic erosion. Instead of concentrating on the mechanisms through which courts are attacked, it focuses on how courts effectively behave in the long term when operating under sustained political pressure. The central claim is that judicial resistance cannot be explained solely by formal institutional design or by a general commitment to constitutional principles. It depends on the interaction of three variables: judicial replaceability, external support, and enforcement capacity.

The article develops a typology of judicial responses to executive aggrandizement, …

A Qualitative Study Of Journalism Course Syllabi In Relation To The First Amendment, Elizabeth L. Bunnell

Journalism Undergraduate Honors Theses

The goal of this research is to gain more insight into collegiate journalism course syllabi and the First Amendment. The First Amendment is a foundational aspect for a career in journalism, and one way to learn how college journalism students are interacting with the First Amendment is to conduct a qualitative analysis of the syllabi. A syllabus is the contract between professor and student for the course; therefore, it should contain the most important information relating to the course. 47 syllabi were collected from the School of Journalism and Strategic Media from the Spring 2025 semester. After reading through each …

Maga's Blue State Strategy: How Democrats And University Leaders Helped The Reactionary Right Weaponize Antisemitism Against Higher Education, Jonathan Feingold, Isaac Kamola

Faculty Scholarship

The professors are the enemy. Professors are the enemy. Write that on the blackboard 100 times and never forget it.

—President Richard Nixon, 1972¹

[I]f any of us wants to do the things we want to do[,] . . . we have to honestly and aggressively attack the universities in this country.

—J.D. Vance, 2021²

October 7, 2023 was many things. One of those things was a lucky break for the Heritage Foundation (“Heritage”). For decades, Heritage and its allied think tanks, donors, and officials had labored to discredit and, if possible, take over higher education in the …

Vaccines, Religious Liberty, And The Gvr As Doctrinal Signal, Zalman Rothschild

Articles

This Essay proceeds in four Parts. Part I traces the doctrinal baseline, showing that vaccines have long functioned as the limit case for religious liberty. Part II briefly describes the doctrinal changes of the COVID-19 era — the Supreme Court’s expansion of religious equality doctrine, and its emergency-docket denials that left vaccine mandates formally unresolved — before explaining why the GVR in Miller signals a different move: the extension of the religious liberty framework to vaccine mandates, bypassing the comparability analysis that had allowed most courts to sustain them under the equality model. Part III turns to Miller itself and …

Foreword: The Universities Will Not Save Us, Jonathan Feingold

Faculty Scholarship

In the spring of 2024, thousands of university students joined campus protests advocating for Palestinian human rights and calling on their institutions to divest from Israel’s military assault on Gaza.1 The student action echoed historical protest movements that universities routinely celebrate in their brochures, monuments, and signage.2 Yet rather than embrace their students’ principled activism, universities across the country deployed militarized force against their own communities.3 From elite Ivies in the northeast, to large privates in the Midwest, to state schools in Texas and California, administrators greeted peaceful protest with discipline, smears, and physical violence.

A Constitutional Black Box: Critically Assessing The Constitutional And Algorithmic Implications Of The Netchoice Cases, Sam Merkatz

Bates College Undergraduate Law Review

In 2024, the Supreme Court of the United States jointly heard Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, cases challenging Florida and Texas statutes that restricted the capacity of social media platforms to moderate content. While remanding the cases, the Court reaffirmed that content moderation and curation qualify as protected expression under the First Amendment. This paper critically assesses the Court's majority opinion and its nonbinding dicta regarding the expressive nature of algorithmic moderation.

Specifically, drawing on Justice Alito’s concurrence in judgement only, this paper argues that the Court fails to account for fundamental differences between traditional …

Public Opinion And State Abortion Policy, Gender, Age, And Ideology: Agreement With Dobbs Vs. Jackson Women’S Health Organization (2022), Jack Mcroberts

Bates College Undergraduate Law Review

No abstract provided.

Understanding Government Regulation On Food And The Constitutionality Of Banning High Fructose Corn Syrup For National Defense, Charlotte Bernhard

Bates College Undergraduate Law Review

The following work explores a hypothetical scenario in 2029 where President Gavin Newson  hopes to decrease obesity to increase the number of Americans eligible for the draft. As tensions rise in North Korea, the President considers sending around 200,000 troops to South Korea and Japan, yet with high levels of obesity in the United States, a low number of eligible Americans for deployment may put unnecessary strain on troops. Therefore, the President considers banning high fructose corn syrup-containing products to decrease obesity rates.

This work explores how the President and American government can constitutionally limit foods containing high fructose corn …

Kinerja Polri Pasca Polri Mandiri, Farouk Muhammad

Jurnal Hukum & Pembangunan

Abstract

Penyelesaian Tindak Pidana Pemilu Di Indonesia, Topo Santoso

Jurnal Hukum & Pembangunan

Abstract

Putusan Arbitrase Asing Dapat Dibatalkan Di Indonesia, Tineke Teugeh Longdong

Jurnal Hukum & Pembangunan

Abstract

Peran Serta Masyarakat Dalam Pembangunan Kehutanan, Jufrina Rizal

Jurnal Hukum & Pembangunan

Abstract

Pulau-Pulau Terluar Dan Batas Wilayah Nasional: Status Delimitasi Batas Wilayah Nusantara, R. W. Martindas - Klaas J.V.

Jurnal Hukum & Pembangunan

Abstract

Proses Penyelesaian Sengketa Pulau Sipadan·Ligitan, N. Hasan Wirajuda

Jurnal Hukum & Pembangunan

Abstract

Menggagas Hukum Era Indonesia Baru, Kartini Sekartadji

Jurnal Hukum & Pembangunan

Abstract

From Chains To Handcuffs: Confronting The Racial Legacy Of Prison Labor And The Urgency Of Reform, Hibah Hasan

Criminal Law Society Blog

This article examines prison labor in the United States as a system rooted in the 13th Amendment’s exception clause and shaped by post–Civil War practices such as Black Codes and convict leasing. It argues that, although formally abolished, the racialized logic of forced labor persists through modern mass incarceration, where incarcerated individuals—disproportionately Black men—perform essential work for little to no pay and without basic labor protections. The article analyzes how this system reflects a continuation of historical exploitation and proposes reforms, including fair compensation, voluntary participation, and expanded labor protections, to align prison labor with principles of rehabilitation and justice.