Digital Commons Network^™

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

Race, Memory, And Authority In Constitutional Interpretation, Henry L. Chambers, Jr.

Law Faculty Publications

This Essay considers how America’s history and memory regarding race complicate constitutional interpretation. If scholars interpreted the Constitution merely to determine what the majority view of the Constitution may have been when it was ratified—its original public meaning (“OPM”)—the loose use of history and memory to interpret the Constitution might be acceptable. What the People—whose membership is contested—thought the Constitution meant when it was framed is interesting, so long as it does not bind us today. However, as Jack Balkin notes in Memory and Authority: The Uses of History in Constitutional Interpretation, lawyers and judges attempt to use history and …

Undermining Discretion: The Selective Attacks On Progressive Prosecutors, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Prosecutors are the most powerful officials in the criminal legal system. They decide whether to bring criminal charges and what those criminal charges should be. These decisions are totally within their discretion. The U.S. Supreme Court has consistently protected the power and discretion of prosecutors in making these decisions, and legal challenges to the exercise of prosecutorial discretion have been largely unsuccessful.

In recent years, a growing number of individuals have successfully run for chief prosecutor on platforms of reducing the prison and jail populations, consistent with public safety. They pledged to use their power and discretion to implement policies …

The Union Gospel Mission Cases, Church Autonomy, And Co-Religionist Hiring: A Response To Professor Esbeck, Robert W. Tuttle, Peter J. Smith

GW Law Faculty Publications & Other Works

Courts have increasingly applied a doctrine of church autonomy to resolve claims involving religious organizations. A recent decision of the Ninth Circuit invoked the doctrine to permit religious employers to favor co-religionists in hiring, even for non-ministerial positions. Professor Carl Esbeck has written a thoughtful critique of the court’s decision. This essay responds to Esbeck and, more broadly, provides a criticism of church autonomy doctrine and a roadmap for decision when the Ninth Circuit’s opinion is reviewed en banc. In our view, courts should apply a doctrine of ecclesiastical abstention, which prevents them from resolving specifically religious questions. But we …

Constitutional Law: Constitutional Symmetry, Zachary S. Price

The Judges' Book

The United States is closely divided over politics, and these divisions have infected constitutional law. Conservatives, by and large, interpret the Constitution to protect religion, limit gun control, and obstruct federal administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown divided and polarized, achieving partisan goals through federal legislation has grown more difficult. The two parties have dreamed, in effect, of capturing …

Oklahoma’S Bible Policy: The Evolving Establishment Clause From Lemon To Kennedy, Carson Douglas Shaw

Oklahoma Law Review

No abstract provided.

Two Dogmas Of Free Speech Doctrine, David R. Dow

Oklahoma Law Review

No abstract provided.

Preempted Or Permitted? State Immigration Enforcement, Federal Preemption, And The Future Of Immigration Policy, Aryn Kerr

Oklahoma Law Review

No abstract provided.

Kekuasaan Yudisial Dalam Sistem Demokrasi Konstitusional: Membangun Antitesis Dekonstitusionalisasi Dan Politisasi Peradilan, Tundjung Herning Sitabuana, Airlangga Surya Nagara, Dixon Sanjaya

Jurnal Hukum & Pembangunan

Strengthening idea of constitutional democracy as a transitional phase towards a modern rule of law requires one of main characteristics of an independent judiciary. Current phenomena demonstrate how utopian these conditions are as the judiciary becomes increasingly politically pragmatic, transactional, interdependent, and demoralized. At the same time, phenomenon of constitutional defiance is growing stronger with efforts to deconstitutionalize and politicize the judiciary. This study aims to explore the existence and legitimacy of the judiciary in constitutional democracy era against that phenomenon. The research was conducted doctrinally with a historical, conceptual, and comparative approach that was analyzed qualitatively. The results indicate …

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

Excavating Miranda, Samuel J. Levine

Scholarly Works

Sixty years after it was decided, Miranda v. Arizona remains one of the most significant and renowned cases—as well as, arguably, one of the most controversial cases—in the history of the United States. Chief Justice Earl Warren’s majority opinion, establishing the eponymous Miranda warnings for custodial interrogation of criminal suspects, has prompted voluminous and continuing commentary, among both critics and supporters. This Article is part of an ongoing project exploring a particular aspect of Chief Justice Warren’s majority opinion: a footnote referencing Jewish legal sources, documenting an important passage at the start of a pivotal section of the opinion.

Building …

Can We Talk—Really Talk—About Critical Race Theory? What A Game For All Ages Can Teach Us, Dan Subotnik

Touro Law Review

This essay may shock many readers. What it tries to do is look more closely than usual at the underpinnings of American racial discourse in the hope of leaving its readers, by its end, more willing than before to speak openly and listen carefully to people who disagree with them on the fraught subject of race. Wouldn’t many of us academics like to engage in a more open-minded sort of interracial conversation with a greater variety of our peers than we usually do? And yet it never seems to happen. Do any of us, black or white, feel we can …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …

Trolling The Rule Of Law: Presidential Lawfare, The Stalingrad Defense, And The Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on presidential lawfare, examines the so-called “Stalingrad Defense”—a strategy of total procedural obstruction—within the broader phenomenon of rule-of-law backsliding facilitated by legal professionals. By exhausting judicial resources and weaponizing procedural delays on behalf of political leaders, such lawyers do not merely defend a client; they actively participate in subverting the institutional foundations of democracy. I argue that the standard conception of legal ethics, which emphasizes neutral partisanship and zealous advocacy, is fundamentally inadequate to capture the wrongfulness of lawyers who use legal tools to dismantle the legal system itself. In its place, I propose …

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law.

“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.

The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from …

Why Constitutional Argument Matters, Philip C. Bobbitt

Faculty Scholarship

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis — the system …

Disconsents, Daryl J. Levinson, David E. Pozen

Faculty Scholarship

Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent-based regulation that have been identified within myriad domains, the Article identifies …

Dan Subotnik Kept It Real, John Mcwhorter

Touro Law Review

No abstract provided.

Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.

Touro Law Review

In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.

The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte

Touro Law Review

No abstract provided.

Fourth Amendment Rights In The Age Of Automated License Plate Recognition Cameras, Jessica L. Terkovich

Touro Law Review

Law enforcement technology has evolved to the point of being ever-present, especially in the form of automated license plate recognition cameras. This Article analyzes recent Fourth Amendment challenges to automated license plate recognition camera systems and developments in the technological landscape in the wake of seminal cases discussing the changing expectations of privacy as law enforcement technology evolves. The Article concludes that, as is, automated license plate recognition camera systems are not unconstitutional dragnets and do not perform warrantless searches, though they have potential to raise constitutional issues in the future.

Seven County Infrastructure Coalition V. Eagle County, Craig A. Rigdon

Public Land & Resources Law Review

The National Environmental Policy Act of 1969 is a landmark in United States environmental law. For more than half a century, under its authority, all federal agencies contemplating proposed actions that pose significant environmental impacts have incorporated an analysis of those impacts into their decisions. These analyses provided an avenue for opponents to challenge an agency’s final decision in federal court. Earlier this year, the Supreme Court issued a “course correction” to rein in the disparate approaches that the lower courts had applied to cases challenging federal agency decisions on NEPA grounds. The unambiguous guidance the Court lays out for …

Mogok Kerja Tenaga Medis: Problematika Pada Uu Ketenagakerjaan Dan Pilihan Model Pengaturannya, Rama Agung

Jurnal Hukum & Pembangunan

The issue of healthcare workers' strikes remains complex in terms of regulatory frameworks. On one hand, there is a conflict of interest between public interest in access to healthcare services and, on the other, the Labor Law, which regards the right to strike as a fundamental right of workers, integral to collective bargaining. This paper examines the challenges in regulating healthcare workers' strikes by analyzing Article 139 of the Labor Law and exploring regulatory models that support the provision of high-quality healthcare services. The findings highlight several key points. First, Article 139 of the Labor Law does not yet provide …

Analisis Perluasan Makna Pasal 71 Ayat (1) Undang-Undang Pilkada Berdasarkan Putusan Pengadilan Negeri: Upaya Mewujudkan Keadilan Dalam Pilkada 2024, Supriyadi Supriyadi, Abdullah Iskandar

Jurnal Hukum & Pembangunan

The analysis and study of decisions is actually popular and developed in countries with common law systems, legal scholars, researchers and practitioners there place their court decisions as the primary object of legal study, which is why the existence of court decisions is the main benchmark in applying and shaping the law. In the context of legal development in Indonesia, the study of this decision has had a good place among legal scholars and researchers, this has been proven by the existence of several works produced focusing on the analysis of decisions, such as those popularised by the Judicial Commission …

Lahirnya Tensi Metafisik Di Urat-Leher Projek-Projek Interpretasi Konstruktif, Herman Bakir, Mukhtasar Syamsuddin

Jurnal Hukum & Pembangunan

This project is a legal hermeneutics. The aim is to elaborate the paradigm of the law as integrity theory, Ronald Dworkin’s work, which has received recognition as one of the most influential philosophical systems in the world of law throughout the last century. The issues discussed are divided into three subjects: (1) the interpretation role in legitimizing “law” as a corpus that has a “soul”; (2) a concept of interpretation from the womb of the law as integrity theory; (3) the dual capacity of “constructive interpretation” in [a] “returning” law to its roots; and [b] housing “morals” within the body …

Penggunaan Metode Socrates Dalam Mengembangkan Pendidikan Tinggi Hukum Di Indonesia, Syarifah Lisa Andriati, Inneke Kiki Rizki, Ain Najwa Binti Mohd Malian

Jurnal Hukum & Pembangunan

The ability to think critically and have the ability as a problem solver is needed in higher education Law in Indonesia. One of the methods used is the Socratic Method. Critical thinking is one of the aspects that law students must have to improve their ability as problem solvers. This research was conducted to contribute that the application of the Socratic method is effective to be applied in the learning process of higher education in Indonesia, as well as to provide evaluation and knowledge about the challenges and obstacles that will be faced in the process of applying the Socratic …

Tapera: Melindungi Hak Atas Tempat Tinggal Atau Mengancam Kehidupan Yang Layak, Elizabeth Jeneva Samuella, Ida Susanti

Jurnal Hukum & Pembangunan

This study examines the People's Housing Savings (TAPERA) policy in the context of protecting the right to adequate housing and its impact on the decent living conditions of workers. Under TAPERA regulations, all workers are required to set aside a portion of their salary, including those who already own a home. While this policy aims to improve access to adequate housing, it raises questions about its impact on purchasing power and the fulfillment of other basic needs. The study employs an interdisciplinary approach using socio-legal methods to evaluate whether the mandatory TAPERA contributions can be considered a violation of the …

The Illusory Privilege Against Self-Incrimination, Kelsey Rohr

Arkansas Law Review

This Note addresses the insufficiency of the current system in protecting criminal defendants’ privilege against self-incrimination. Part II will outline the background legal principles of the issue, including the privilege against self-incrimination, the presumption of innocence, and the no-impeachment rule. This part will also address the Supreme Court’s sole judicial exception to the no-impeachment rule as laid out in Peña-Rodriguez v. Colorado. Part III will address the statistical significance of juror bias against criminal defendants who invoke the privilege, highlight the widespread nature of the bias, and argue that the procedural safeguards currently in place are insufficient to protect.

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Chicago-Kent Law Review

No abstract provided.