Digital Commons Network^™

Anti-Transgender Constitutional Law, Katie Eyer

Vanderbilt Law Review

Over the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.

This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures …

The Private Litigation Impact Of New York’S Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Sabin Center for Climate Change Law

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments” — self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns …

An Originalist Approach To Puerto Rico: Arguments Against The Status Quo, Micah Allred

Notre Dame Law Review Reflection

Few originalists have grappled with a fundamental question about Puerto Rico: whether the Constitution permits the United States to hold the island indefinitely as nonstate territory. There are reasons to doubt that it does. The main purpose of the Constitution’s territorial provisions was to allow Congress to transition the then West-ern Territory into states. And, as a structural matter, Congress’s direct authority over Puerto Ricans conflicts with important constitutional principles such as federalism. But for originalists, arguments from purpose and structure are helpful only insofar as they elucidate the original meaning of the Constitution’s text. This Article lays out two …

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

Meet The New Chief, Same As The Old Chief: A Coherent Solution To The Problem Of Prior Conviction Proof Procedures, Robert Barnhart

West Virginia Law Review

Conventional wisdom tells attorneys they can avoid having the jury learn about criminal defendants’ prior convictions if the client exercises their right to not testify at trial. Conventional wisdom is wrong. Myriad status crimes, sentence enhancing specifications, and substantive offenses make prior convictions an element of the offense, ensuring the prosecution can introduce them as a matter of course during the prosecution’s case-in-chief. The seminal Supreme Court Case, Old Chief v. United States, provided some relief to criminal defendants by allowing them to stipulate to their status as a felon prohibited from possessing weapons to avoid having the jury learn …

The Cartoon Physics Of The Court-Martial, John M. Bickers

West Virginia Law Review

No abstract provided.

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

How Far Have Standards Of Decency Evolved In Fifteen Years? An Update On Atkins Jurisprudence In Mississippi, Alexander Kassoff

MC Law Review

In 2002, the United States Supreme Court handed down Atkins v. Virginia, holding that the Eighth Amendment prohibits the execution of people with intellectual disability. In the years since that ruling, some change has occurred, but questions remain. This article will examine significant developments in Atkins jurisprudence during that time period. It will look at the two post-Atkins United States Supreme Court cases, and the development of the law - in Mississippi especially, but also to some extent in other jurisdictions that still have the death penalty.

The Ebb, Flow, And Twilight Of Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

Just as the Roberts Court has been expanding presidential authority to its historic maximum, recent legal scholarship has shown that the Founders intended, to paraphrase Justice Jackson’s famous Youngstown concurrence, a much lower ebb or at least an ambiguous twilight about “executive power,” in contrast to originalists’ unsupported certainties.

The Story Of New York Times V. Sullivan: How Free Speech Rights Were Intertwined With The Civil Rights Movement, Samantha Barbas

ConLawNOW

This essay, delivered to the Law Library of Congress as the 2023 Constitution Day Lecture, tells the story of New York Times v. Sullivan, widely regarded as one the most important First Amendment decisions of all time. It is a decision that has profoundly affected the workings of the press and shaped the contours of public discourse in the United States. And it is a decision that continues to raise controversy because of the broad protections it gives to freedom of speech at the expense of other rights such as reputation and privacy. The essay summarizes the author’s work …

Brief Of Children’S Rights Advocates In Support Of Appellees: Held V. Montana, Asha Brundage-Moore, Wyatt Sassman, Catherine Smith

Scholarly Articles

Amici Curiae are members of the Consortium for the Advancement of Children’s Constitutional Rights and Healthy Mothers, Heathy Babies: The Montana Coalition who are children’s rights advocates and legal scholars. Amici submit this brief to: (1) highlight Montana’s Constitution as a leader in advancing children’s constitutional rights; (2) draw this Court’s attention to the Montana Constitution’s text and history recognizing children’s right to a clean and healthful environment; and (3) explain that a decision not to safeguard children’s right to a clean and healthful environment in reliance on adult-centric analytical missteps advanced by Appellants (and supporting Amici) would deny Montana’s …

Symposium: Gender, Health And The Constitution: The Misalignment Of Medical Capacity And Legal Competence For Perinatal People With Serious Mental Illness, Melisa Olgun, Carlos Larrauri, Sonja Castaneda-Cudney, Elyn Saks

ConLawNOW

This Article evaluates the misalignment of medical capacity and legal competence for perinatal people with serious medical illnesses (SMI), an issue that has had limited discourse in legal academia. It delineates the contours of these concepts, dissecting their theoretical underpinnings and practical applications. While medical capacity is often considered an iterative, context-specific determination, legal competence is typically treated as a rigid, binary legal categorization. It then illustrates how the disparate scope and aims of capacity and competence lead to a precarious misalignment for people with fluctuating mental states, particularly perinatal people with SMI. The Article proposes solutions to harmonize the …

Symposium: Gender, Health, And The Constitution: Gender-Affirming Care And Children's Liberty, Dara E. Purvis

ConLawNOW

This essay addresses the wave of statutes banning gender-affirming care for transgender and gender-diverse minors passed in states across the country over the last three years. It argues that an underdeveloped understanding of children’s rights makes it more difficult to explain how harmful gender-affirming care bans are and to challenge them in court. After explaining the nature of gender-affirming care, the essay discusses the grounds underlying existing challenges to gender-affirming care bans, highlighting the emphasis on equal protection and parental rights. It concludes by reframing the children’s liberty argument and exploring what the broader consequences of courts recognizing such a …

Beyond The Ban: One Major Challenge Facing The Ftc Non-Compete Rule, Brendan Mohan

ConLawNOW

This article analyzes the implications of President Biden's Executive Order 14036 and the subsequent notice of proposed rulemaking (NPRM) by the Federal Trade Commission (FTC) to ban non-compete agreements. It examines the legal basis for the NPRM, including Sections 5 and 6(g) of the FTC Act, and anticipates potential challenges to its implementation, most notably under the major questions doctrine. It explores the broader ramifications of the NPRM for labor and employment law, emphasizing its potential to reshape administrative agency regulation and the regulatory landscape. It concludes by analyzing the rule under the major questions doctrine and the possible outcomes …

Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken

ConLawNOW

This essay explores the dehumanizing potential of metaphors used to describe women’s reproductive biology through literary analysis of Margaret Atwood’s canonical feminist novel The Handmaid’s Tale (1985). Attending to the rhetoric that both justifies and contests ritualized rape and forced surrogacy in Atwood’s novel, this essay begins by interrogating the ubiquitous cultural and biomedical metaphors that reduce women and pregnant people to their bodies’ reproductive potential. The first section draws from scholarship in medical anthropology, medical rhetoric, and literary studies to illuminate how gendered stereotypes pervade biomedical, cultural, and legal representations of reproduction, reifying the conflation of women and people …

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 …