Digital Commons Network^™

Reconstructing The Administrative State In The Shadow Of The Unitary Executive, William Thomas Worster

ConLawNOW

The Supreme Court’s unfolding embrace of the unitary executive theory has now substantially restricted Congress’s ability to insulate administrative agencies from presidential control. In Trump v. Slaughter, the Court invalidated the Federal Trade Commission’s statutory removal protections and, in turn, shifted its substantial regulatory, adjudicative, and enforcement powers from independence to far more enhanced presidential supervision. The decision thus exposes a fundamental problem in the constitutional organization of, and legislative assumptions supporting, the administrative state, that have evolved over a substantial part of the nation’s history. Modern agencies are classified as “executive,” firmly placed within Article II under the …

Buddy, Can You Spare A Claim?: Sparing Debtors' Claims From Dismissal Under The Doctrine Of Judicial Estoppel, Post-Keathley V. Buddy Ayers Construction, Inc., Abigail Bright Willie

ConLawNOW

In Keathley v. Buddy Ayers Construction, Inc., the Supreme Court considered the (decidedly) unglamorous issue of the proper standard for determining when judicial estoppel may be applied. While the case did not attract front page news, those in the bankruptcy law world knew the stakes, as evidenced by the amicus briefs filed by retired bankruptcy judges, bankruptcy scholars, and national bankruptcy organizations. They recognized that, if a merely inadvertent omission by a debtor in required disclosure documents could result in dismissal on judicial estoppel grounds of an otherwise prosecutable claim, there would be profound implications for the estate and …

Zero-Sum Empathy: The Supreme Court's 2025 Term Decisions On Gender Identity, Susan Etta Keller

ConLawNOW

This past term, the Supreme Court majority continued to follow a pattern of rendering transgender individuals essentially invisible in the cases that concern their rights. In last year’s United States v. Skrmetti, the transgender youth affected by the ban on transgender care were largely absent from the majority opinion holding that such bans discriminated on the basis of neither sex nor transgender status. This term, the majority continued a similar trend, deciding two cases on the emergency docket that ignored the lived experience of transgender individuals while significantly affecting them, and one case on the merits, West Virginia v. …

International Law Can't Get No Respect, Cindy G. Buys

ConLawNOW

This Essay addresses the recent trend in the U.S. Supreme Court of refusing to seriously engage with the United States’ commitments under international law. It argues this refusal to acknowledge the role of international law in U.S. law disregards the U.S. Constitution’s inclusion of treaties as part of the Supreme Law of the Land and the Court’s own long-standing position that “international law is part of our law.” This Essay uses two cases from the Court’s 2025 term, Mullin v. Al Otro Lado and Cisco Systems, Inc. v. Doe to illustrate the Court’s disregard of international law and highlights some …

The Supreme Court's Ideal Audience, H. Jefferson Powell

ConLawNOW

This Essay argues that the answer to the troubling question of whether constitutional law on the Supreme Court level is truly "law," is yes. Or at least can be yes without any radical change to our modes of constitutional law reasoning by understanding how and why the Justices' write their opinions. It suggests that George Christie’s classic book, The Notion of an Ideal Audience in Legal Argument, provides part of the basis for affirming the law-ness of American constitutional law in two ways. First, using the lens of constitutional law provided by Christie’s formulation of the ideal audience concept, it …

The Norm Against Nakedly Partisan Justifications And The Callais Exception, Jason Marisam

ConLawNOW

Public law has long maintained a norm against nakedly partisan justifications: while officials may sometimes pursue partisan ends in office, they must justify their actions in court with reasons that do not roughly equal “this benefits my political party” or “this hurts the opposition.” This norm has operated across doctrinal fields, including public employment, administrative law, and election law. In the 2025-26 term, in Louisiana v. Callais, the U.S. Supreme Court abandoned the norm entirely in the redistricting context, treating a state’s pursuit of partisan advantage as a legitimate interest that can defeat a claim under the Voting Rights …

The Threat To Government Ethics, Richard Briffault

Faculty Scholarship

That was quite a week. Over seven days in mid-October:

• President Trump hosted a White House dinner for three dozen super-wealthy individuals and representatives of major corporations who pledged funds for his $300 million ballroom.
• The president commuted the sentence of former Congressman George Santos, who had served less than three months of an 87-month term for corruption, and canceled Santos’s obligation to pay restitution to his victims.
• The president fired, without providing a reason or giving the 30 days’ notice required by law, the Inspector General for the Export-Import Bank.
• We learned the president is demanding the Department of …

Liberty As Entitlement In The Common Law, Joshua C. Tate

San Diego Law Review

In recent decades, some Justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process.  In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”  This Article will argue that such a narrow definition excludes many instances in which the common law used “liberty” as a synonym for “privilege” or “entitlement.”  Treatises that were well-known to the Framers …

Book Review: Judicial Originalism As A Byproduct Of An Overly Difficult Amendment Process: Jill Lepore's We The People, Charles Britton

ConLawNOW

This essay reviews the book by Jill Lepore, We the People: A History of the U.S. Constitution, winner of the 2026 Pulitzer Prize for history.  It explains how Lepore examines the history of constitutional amendment—both successes and failures—to argue that frequent amendment was the democratic intent of the Framers. And shows how this amendment philosophy contradicts the originalism of the current Supreme Court.

Book Review: After Apprendi And Erlinger, The Jury - Not The Judge - Determines Whether Or Not The Defendant Is A Habitual Traffic Offender, Harvey Gee

ConLawNOW

This book review discusses Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration by Rachel Barkow. The review concludes that the book persuasively argues that from the 1960s through the 1980s, the Supreme Court repeatedly departed from constitutional text, history, and precedent in expanding the government’s power to arrest, prosecute, and detain. And contends that these trends both curtailed individual liberty and worsened racial inequality. The review then builds on Barkow’s important scholarship to extend her conversation to cover criminal litigation in general jurisdiction state courts—where people are compelled to go when they are cited or …

Is Originalism Orthodoxy?, Neel Sukhatme

Articles

What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

Rules Of Public Service: Between The Domain Of Law And The Regulatory Domain, Mohamed Acherki

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This paper examines the constitutional distribution of legislative and regulatory powers concerning public service rules in Morocco. Under the 1962 Constitution, only "basic guarantees granted to civil and military state employees" fell within the legislative domain, with all other public service rules relegated to the regulatory sphere. The 1970 Constitution maintained this approach. Despite constitutional provisions allowing for the adoption of organic laws to clarify and delimit these domains, no such laws were ever enacted for public service. Consequently, between 1962 and 1972, most public service rules remained within the regulatory domain, including some initially adopted by legislative acts, which …

The Holy Trinity: Religion Clauses And Education Funding On The Roberts Court, Philip T.K. Daniel, Jeffrey C. Sun

ConLawNOW

The Supreme Court’s trinity of education subsidy cases have created an emergent pattern in education funding cases that extend much further than just emphasizing rules of neutrality and accommodation. These also potentially harm minoritized perspectives and identities by moving far beyond historic doctrinal groundings of separation of church and state. In three key cases all authored by Chief Justice Roberts, Trinity Lutheran Church of Columbia, Inc. v. Comer (2017),  Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022), the Court in this “Holy Trinity” of decisions moved from a theory of benevolent neutrality to policy abdication, relinquishing …

The Contested Contingent Constitution: Plutocrats, Right-Wing Populists, And Labor Rights In The U.S., Kate Andrias

Faculty Scholarship

Constitutional labor rights have long been negligible in the United States. Now, with the ascendance of Donald Trump’s right-wing authoritarianism, even statutory labor rights are under threat. Yet there is an apparent paradox: While the Trump Administration seeks to declare the NLRB unconstitutional and has decimated federal workers’ rights, Trump’s “Make America Great Again” (MAGA) movement rose to power in part by invoking the plight of the American worker. The more populist wing of the American Right does not expressly challenge the constitutionality of labor law. Indeed, some right-wing populists urge an expansion of labor rights, emphasizing such goals as …

The President As Agent: Reframing The Major Questions Doctrine, Matthew Collins

ConLawNOW

On the heels of the Learning Resources v. Trump decision, this Essay argues that agency theory provides an important framework for understanding the major questions doctrine. This perspective has received little attention in legal scholarship. The Essay casts the major questions doctrine in a new light by framing it as a constraint on the president acting as Congress’s agent. By highlighting this bridge between private-law agency principles and public law, the piece offers two novel insights. First, it reconceptualizes the relationship between the major questions and nondelegation doctrines: the former addresses the unfaithful execution of Congress’s directives by the executive …

The Recent Moroccan Parliamentary Experience During The Term Of The House Of Representatives From 14 October 1977 To 13 October 1983, Abderrahman El Kadiri

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This article studies Morocco's parliamentary experience during the legislative term of the House of Representatives extending from 14 October 1977 to 13 October 1983. It examines the functioning of the parliamentary institution, its legislative activity, its relationship with the executive power, and its oversight practices. The article also reflects on the political and constitutional conditions that shaped the performance and limits of this parliamentary experience.

Report On The Specialized Study Days On Parliamentary Experience And Legislative Practice In Morocco: Faculty Of Law, Rabat, May 24–26, 1984, Mohamed Moatassim

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This report presents and discusses the specialized study days devoted to parliamentary experience and legislative practice in Morocco, held at the Faculty of Law in Rabat from May 24 to 26, 1984. The author summarizes the central questions raised during the meeting, including the assessment of the Moroccan parliament, the relationship between politics and law, the limits between public and private law, and the role of legal and social sciences in analyzing legislative institutions. The report reviews the diversity of contributions and debates, highlighting the importance of interdisciplinary reflection on parliamentary practice in the Moroccan context.

The Colonial Borders Within: Racial Profiling, Language, And Civil Juries, Jasmine Gonzales Rose

Faculty Scholarship

This Article builds on the scholarship of Kevin R. Johnson, whose work has long illuminated how immigration law and constitutional doctrine have enabled the subordination of Latines through racial profiling,2 language discrimination,3 and exclusion from civic institutions, like juries.4 His analyses of juror exclusion and the importance of a diverse judiciary underscore how the composition of civil and criminal factfinders shapes both recognition of harm and the remedies afforded.5 Long before the current period of intensified, abusive immigration enforcement, his scholarship traced the historical roots of these practices, examined their contemporary manifestations, and revealed the ways in which the law …

The Constitutional Penumbras Of Home Rights, Gerald S. Dickinson

William & Mary Bill of Rights Journal

Justice William Douglas’s famous parable in Griswold v. Connecticut argued that the Bill of Rights contains penumbras—implied zones of privacy protections— that emanate from the First, Third, Fourth, and Fifth Amendments. His penumbral conception of privacy rights has sparked extensive debate among legal scholars, reflecting both its influence and its ongoing controversy. Yet, there is more to Justice Douglas’s penumbra story to explore. In expounding on his privacy innovations in Griswold, Justice Douglas explained that the Fourth and Fifth Amendments protect against all governmental invasions of the sanctity of a man’s home and the privacies of life. Indeed, the …

Locked And Unloaded: The Constitutional And Empirical Case For Firearm Safe Storage Advisories, Hillel Y. Levin, Kay L. Levine

William & Mary Bill of Rights Journal

Constitutional law haunts our efforts to reduce the number of firearm deaths each year. But even with the evolving scope of individual rights, sensible regulation remains possible.

This Article proposes one such regulatory tool. State governments legally can and pragmatically should require firearm sellers to advise their customers of the association between improper gun storage and the risk of accidental death and suicide. Mandatory safe storage advisories implicate two strands of constitutional jurisprudence: the First Amendment’s protection against compelled speech and the Second Amendment’s right to bear arms. While the Supreme Court has strengthened both doctrines in recent years, jurisdictions …

The Constitutional Future Of Trademark Tarnishment, Jake Linford

William & Mary Bill of Rights Journal

This Article is the first to examine whether trademark anti-tarnishment laws should be deemed constitutional after the Supreme Court’s 2024 decision in Vidal v. Elster. Anti-tarnishment laws protect famous brands from uses that could damage their reputation, even when consumers are not confused about who makes the tarnishing product.

The Supreme Court recently declared some trademark registration restrictions unconstitutional in Matal v. Tam and Iancu v. Brunetti. In these cases, the Court struck down federal laws that prevented registration of “disparaging” trademarks and “scandalous or immoral” trademarks because they categorized the registration bars as unconstitutional viewpoint-based restrictions. These …

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 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 …

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 …

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. …

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. …

How Maine Beat Strict Scrutiny, Nicholas Glover Esq.

Bates College Undergraduate Law Review

No abstract provided.

How The Roberts Court Killed Originalism, Eric J. Segall

Georgia State University Law Review

Although there are at least five justices who identify as originalists on the Roberts Court, none of them exercise judicial review in an originalist manner, and the Roberts Court as an institution is no less or more originalist than previous Supreme Courts. The important difference between the Roberts Court and previous Supreme Courts is that the current justices claim to be guided by originalism, but decide cases by using a living constitutionalist, pluralistic model of judicial review.

The current chaos plaguing constitutional law and constitutional theory flows directly from this disconnect between the justices saying publicly that they are employing …