Digital Commons Network^™

Symposium; Gender, Health, And The Constitution: Hysteria Redux: Gaslighting In The Age Of Covid, Jane Campbell Moriarty

ConLawNOW

This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers …

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

From Gods To Google: How Religious Speech Cases May Fortify The Deregulatory First Amendment, Rebecca Aviel, Margot E. Kaminski, Toni M. Massaro, Andrew Keane Woods

Sturm College of Law: Faculty Scholarship

The Court’s extraordinary solicitude for religious expression, manifested across a series of cases involving free exercise, free speech, and establishment clause principles, has been the subject of sustained scholarly attention. Much of that research has focused on evaluating whether the Court is drawing an appropriate balance between the rights of religious believers and government regulatory objectives. In this Article we observe that the Court’s most recent set of moves in this arena, which diverge considerably from decades of speech jurisprudence, will have ramifications that go well beyond the claims of conscience that have so animated the Court’s sympathies. The range …

Constitutional Restraints On Intrastate Distribution Of Taxing Authority, Walter Hellerstein

Scholarly Works

No abstract provided.

Full Faith And Credit In The Post-Roe Era, Celia P. Janes

Duke Journal of Constitutional Law & Public Policy Sidebar

In 2022, the Supreme Court overturned Roe v. Wade, once again leaving the question of whether abortion should be legal to individual state legislatures. This decision allowed the Texas law known as S.B. 8, alternatively known as the Texas Heartbeat Act, to go into effect. The law allows private individuals to sue anyone who has performed or has aided and abetted the performance or inducement of an abortion in Texas. California responded to this law with Assembly Bill 2091, which prevents California state courts from issuing subpoenas arising under S.B. 8 and similar laws in other states. This Note addresses …

An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua

Journal Articles

The Dobbs decision has been leaked. Gathered outside of New York City's St. Patrick's Old Cathedral, pro-choice protesters chant: "Not the church, not the state, the people must decide their fate."

A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: "l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you're having my baby."

Despicable but not unexpected,³ this man's comments …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting …

Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler

Faculty Scholarship

This Article employs the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this Article, …

Symposium: Gender, Health, And The Constitution: The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah L. Brake

ConLawNOW

This essay considers the role of sport in the new gender panic of legislative activity targeting transgender individuals, which now extends into health and family governance. Sport was one of the first settings—the gateway—to ignite the current culture war on transgender youth. This analysis examines how Title IX of the Education Act of 1972, the popular law responsible for the growth of opportunities for girls and women in sports, has been mobilized in service of a broader gender agenda. Far from providing a persuasive justification for the state laws banning transgender girls from girls’ sports, Title IX, properly understood, supports …

Effectiveness Of Raising A Topic For Public Discussion As A Tool Of Parliamentary Oversight Of Government Actions: A Comparative And Applied Study, Jehad Dhifallah Al-Jazi Dr., Bahaaeddin M.S. Khwaira Dr.

UAEU Law Journal

analytical approach to address the nature of the problems accompanying the means of raising a topic for public discussion as a method of parliamentary control over government actions. This is done by searching for the concept of a request for public debate, the constitutionality of this method, and other topics related to this method; so that we can arrive at a legal and practical evaluation of the effectiveness and accuracy of this method in terms of its inputs and results in achieving the public interest in comparison and approach with other parliamentary means.

Within this context, the objectives of the …

When Fines Don't Go Far Enough: The Failure Of Prison Settlements And Proposals For More Effective Enforcement Methods, Tori Collins

Maine Law Review

The Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed …

Intraparty Conflict And The Separation Of Powers, Gregory A. Elinson

College of Law Faculty Publications

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that contrary to the Madisonian vision competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

"Critical Legal Studies, Again?" "Again And Again!", Evan D. Bernick

College of Law Faculty Publications

A review of FROM PARCHMENT TO DUST: THE CASE FOR CONSTITUTIONAL SKEPTICISM. Louis Michael Seidman.* New York: The New Press. 2021. Pp. viii + 311. $27.99 (Hardcover).

You’d be forgiven for assuming that Louis Michael Seidman’s estimation of the U.S. Constitution had improved over the course of the last decade. In his 2012 book, On Constitutional Disobedience, he asked whether anyone should “feel obligated to obey [a] deeply flawed, eighteenth-century document,” and answered (emphatically) “No.”2 Now he has published From Parchment to Dust: The Case for Constitutional Skepticism. At first blush, skepticism seems rather different and less radical than disobedience. …

The Constitutional Meaning Of Financial Terms, Tomer S. Stein, Shelby Ponton

Scholarly Works

The Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution, comprising of two fundamental canons of construction.

First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does …

Rules & Laws For Civil Actions: 2024 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

2024 Edition

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa …

Searching For Truth That Speaks To Power: Free Speech And Equality On Campus, Stephen M. Feldman

American University Law Review

University campuses are being rent apart in disputes pitting free expression against equality [read: diversity, equity, and inclusion]. Yet scholarly discussions and university declarations widely agree: While universities should encourage an inclusive educational environment, free-speech principles prohibit universities from restricting or punishing hate speech, group libel, and other forms of offensive expression. This Article argues that this prioritizing of free speech over equality on campus is mistaken. Equality should often be favored over free expression in campus settings. Although Supreme Court precedents are ambiguous, one can reasonably argue that the doctrine allows universities to restrict and punish offensive expression, including …

Christian Domination, Ruth Colker

American University Law Review

It is hard to deny that the United States is a Christian nation despite the First Amendment’s promise that the legislature will not establish a religion. The United States is not a Christian nation merely because of the religious beliefs that many people privately hold. It is a Christian nation, in part, because the courts and legislatures have facilitated that development. Moreover, as this Article will argue, Christian favoritism within the political and legal system has developed in sharp contrast to the treatment of Black people, women, the LGBTQ+ community, and disabled people.

This Article explores the development of Christian …

Finding Rights In The Fine Print: How Terms Of Services Agreements Can Turn Consumer Search History Into Digital Property, Dalia Wrocherinsky

American University Business Law Review

On October 16, 2023, the Colorado Supreme Court handed down the country’s first court opinion on the constitutionality of reverse keyword warrants. It found that Google’s Terms of Service created a Fourth Amendment property interest in a user’s search history such that police copying this data constituted a seizure. This was a completely novel contention that implicates basic, yet increasingly relevant and unsettled principles of property, contracts, and Fourth Amendment law.

This Comment will argue that fundamental principles of property, contracts, and Fourth Amendment law support the Colorado Supreme Court’s theory. It will explore how property rights are created and …

The Volokh Briefs: Drawing The Line Against Compelled Speech In Public Accommodations, Dale Carpenter

Faculty Journal Articles and Book Chapters

In a series of important amicus briefs (the “Volokh Briefs”) filed over the course of about a decade, Professor Eugene Volokh was the principal architect of an argument for protecting expressive goods and services offered for sale the commercial marketplace.  This free speech protection would override certain applications of state antidiscrimination law.

The argument bore fruit in 303 Creative v. Elenis (2023), which held that under the First Amendment’s Free Speech Clause the state could not force a designer to fashion websites incorporating the designer’s customized text and graphics for the celebration of same-sex weddings. As Volokh and others urged, …

Reconciling Domestic Violence Protections And The Second Amendment, Natalie Nanasi

Faculty Journal Articles and Book Chapters

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which …

The Wages Of Hitching Wagons, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

This article examines the challenges faced by states that align their constitutions with federal doctrine through the practice of "lockstepping"—adopting federal legal standards into state law. Lockstepping binds states to federal law, regardless of its trajectory. Part I traces the evolution of standing doctrine in both federal courts under Article III and Kentucky courts under its constitution. Part II presents an originalist critique of the federal injury-in-fact requirement, highlighting emerging efforts to abandon this requirement in federal courts. Part III discusses the dilemma states like Kentucky face, balancing constitutional interpretation, federalism, and legal stability.

The Emerging Constitutional Law Of Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of …

The Downstream Consequences Of Transunion Llc V. Ramirez: Why 5 U.S.C. § 2954 Plaintiffs Have Article Iii Standing Consistent With Lower Courts’ Interpretation Of Transunion, Erin Mccoy

American University Law Review

The Supreme Court, in TransUnion LLC v. Ramirez, created additional standing hurdles by requiring plaintiffs to identify a common law historic-analogue when alleging a statutory harm. In doing so, the Court arguably limited informational standing—a unique Article III standing theory whereby plaintiffs may establish an injury for failure to receive information—because informational injuries did not exist at common law.

This Comment asks whether informational standing survives in a post-TransUnion universe, using 5 U.S.C. § 2954 and lower courts’ interpretation of TransUnion for guidance. The statute, § 2954, comes to light in a string of litigation involving the potential illegality …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

The Repeal Of Religious Accommodations -- A Constitutional Analysis, Ronald J. Colombo

American University Law Review

Under modern Supreme Court jurisprudence, the First Amendment ordinarily imposes no heightened standard of review upon neutral laws of general applicability that coincidentally burden the free exercise of religion. To relieve or minimize this burden, however, lawmakers are generally free to promulgate exemptions from, or accommodations to, such laws for the benefit of religious adherents. Such accommodations are common.

When a law is not neutral with respect to religion, or when the law is not generally applicable, then it will be subject to the exacting test of strict scrutiny to the extent that it burdens the free exercise of religion. …

Targeting Children: Liability For Algorithmic Recommendations, Michal Lavi

American University Law Review

We live in the algorithmic society, characterized by massive digital surveillance and data collection by private companies exploiting human information vulnerabilities for profit. The infrastructure of free expression translates into an infrastructure of digital surveillance. This model, dubbed “surveillance capitalism,” includes massive personalized algorithmic targeting that departs from human speakers, allowing a level of influence never witnessed before in scale, scope, or depth.

Personalized targeting can garner many benefits, as it allows individuals to find content that interests them without needing to invest energy in seeking out that content. However, personalized targeting can also cause tremendous harm because it can …

"Background Principles" In The Law Of Takings, David A. Dana

American University Law Review

The Supreme Court appears to be on a mission to enhance the scope of liability under the Takings Clause, the result of which could be the chilling of federal, state, and local regulation. However, the Court has acknowledged that there is no takings liability when, under “background principles,” the property owner lacked the very right she is claiming the government has taken via regulation. The rationale for, and hence proper scope of, the background principles exception to takings liability is opaque in the case law. This Article offers three possible rationales for the background principles exception that could guide courts …

Constitutional Crimes, Michael L. Smith

Faculty Articles

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt …

The Ersatz Of The Plain-Meaning Rule Of Statutory Construction In Sackett V. Epa (Ii), Dana Neacsu

Law Faculty Publications

This essay uses the United States Supreme Court second decision in Sackett v. EPA, or Sackett (II), to stress the obvious: judges are tasked with decoding the nation’s laws for everyone’s understanding. This judiciary duty is heightened when judges encounter ordinary sounding words, such as “water” or “wetlands,” especially if they are used in technical statutes like the Clean Water Act (CWA). Moreover, it is this author’s opinion that when in doubt, rather than be afraid of acknowledging ignorance, as some comedians do, judges should aspire to incorporate scientific expertise in their legal reasoning, and avoid the fiction …

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: …