Digital Commons Network^™

How Should The Court Respond To The Combination Of Political Polarity, Legislative Impotence, And Executive Branch Overreach?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce discusses two related problems that the Supreme Court must address—the large increase in nationwide preliminary injunctions issued by district judges to prohibit the executive branch from implementing major federal actions and the large increase in the number of cases in which the Supreme Court either stays or refuses to stay preliminary injunctions without providing an adequate explanation for its action. He begins by describing the sources of the two problems and the many ways in which they threaten our system of justice. He then urges the Court to issue an opinion in which it provides …

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Was Justice Ginsburg Roe-Ght?: Reimagining U.S. Abortion Discourse In The Wake Of Argentina's Marea Verde, Kim D. Ricardo

Mitchell Hamline Law Review

No abstract provided.

The Supreme Court And The People: Communicating Decisions To The Public, Barry Sullivan, Ramon Feldbrin

Faculty Publications & Other Works

Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by …

Denying The Violence: The Missing Constitutional Law Of Conquest, Juan F. Perea

Faculty Publications & Other Works

If against these Indians, the end proposed should be their extermination, or their removal beyond the lakes or Illinois [R]iver. The same world will scarcely do for them and us. —Thomas Jefferson to George Rogers Clark, 1780

The United States committed at least two original sins. The one, slavery, is well known. The other, conquest, is both obvious and unknown at the same time.

The fact of conquest is proven by the sheer magnitude of the land transfer from indigenous people to white Americans. Before the conquest, native Americans possessed all 1.9 billion acres of the continental United States. After …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

American University Law Review

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

What Does Effective Government Have To Do With The Constitution?, Gillian E. Metzger

Faculty Scholarship

Nearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide. The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations. Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites. Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled. Another is legislative …

Malicious Prosecution As Undue Process: A Fourteenth Amendment Theory Of Malicious Prosecution, Timothy Tymkovich, Hayley Stillwell

Faculty Articles

Section 1983 is not itself a source of constitutional rights, but is instead merely a vehicle to vindicate constitutional rights that independently exist. But since the Supreme Court advised in dictum that actions pursuant to § 1983 should be read against the background of tort liability, § 1983 actions based on malicious prosecution have sparked disagreement over where, if anywhere, this cause of action fits within the Constitution. Most recently, the Supreme Court determined that malicious prosecution finds its constitutional home in the Fourth Amendment, so § 1983 claims require a showing of both a Fourth Amendment violation and the …

A New Report Of Entick V. Carrington (1765), Christian R. Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

El Juicio Político O Impeachment En Los Estados Unidos, Robert S. Barker

Law Faculty Publications

I. El origen ingles -- II. La constitución de los estados unidos -- III. El primer caso: Blount -- IV. El caso Chase -- V. El caso Johnson -- VI. El caso Belknap -- VII. La controversia Watergate, 1972-1974 -- VIII. Los casos Clinton y Trump -- IX. Los casos contra jueces de tribunales federales inferiores, 1873-2010 -- X. El caso Walter Nixon -- XI. Cuestiones no resueltas -- XII. Conclusión -- XIII. Bibliografía.

A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton

Publications

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …

The False Allure Of The Anti-Accumulation Principle, Kevin Stack, Michael Herz

Vanderbilt Law School Faculty Publications

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power-—legislative, executive, and judicial—-in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Ronald A. Cass, Jack M. Beermann

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Don’T “Estop” Me Now: Estoppel, Government Contract Law, And Sovereign Immunity If Congress Retroactively Repeals Public Service Loan Forgiveness, Michael J. Cole

Lewis & Clark Law Review

This Article discusses whether Direct Loan borrowers can obtain recourse against the federal government using either promissory or equitable estoppel theories if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. The Article addresses various hurdles, including sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article also contends that most, if not all, equitable estoppel claims would likely fail before a court. The Article then offers …

Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

Con Law Center Articles and Publications

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will be remembered primarily for its destabilizing effect on abortion rights across the country; in its wake, the legality of abortions performed in various states and at various stages of pregnancy was thrown into turmoil that will take years to resolve. In Dobbs’s immediate aftermath, substantive due process jurisprudence has been at least destabilized, if not prepared for greater limitation in the terms to come. But the Court’s approach to that line of cases has also turned stare decisis doctrine into an unclear jumble that may be considered …

Fundamental Rights And Fundamental Relationships: The Family In Comparative Constitutional Law, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2022 Plenary Session
The Family as a Relational Good: the Challenge of Love
27-29 April 2022
Pierpaolo Donati (editor)
Acta 23, Libreria Editrice Vaticana, Vatican City, 2023

Misinformation About Marijuana: Commercialization, Consolidation, And The New First Amendment, David Angelatos

American University Law Review

From “Reefer Madness” to “This Is Your Brain on Drugs,” Americans have lived through decades of anti-cannabis propaganda. Legalization is poised to turn this information environment on its head, unleashing a torrent of corporate-funded, pro-cannabis misinformation that regulators cannot prevent or dispel. This appears to be a problem caused by the Supreme Court’s creation and expansion over the past fifty years of First Amendment protections for corporate and commercial speech. Although these doctrines contribute substantially to the problem, this Article shows how it originates in lax antitrust policy rather than expansive First Amendment jurisprudence.

If Congress follows current legalization trends …

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

American University Law Review

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

First Amendment Challenges To State Vaccine Mandats: Why The U.S. Supreme Court Should Hold That The Free Exercise Clause Does Not Require Religious Exemptions, Donna M. Gitter

American University Law Review

The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases.

This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

American University Law Review

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

Report To The Editor In Chief Of The Fiu Law Review, Thomas E. Baker

FIU Law Review

No abstract provided.

The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley

FIU Law Review

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a …

The Dilemma Of Liberal Pluralism, Abner S. Greene

Faculty Scholarship

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

A Flawed Case Against Black Self-Defense, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …

Constitutional Gun Litigation Beyond The Second Amendment, Joseph Blocher, Noah Levine

Faculty Scholarship

No abstract provided.

“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher

Faculty Scholarship

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Michael Frakes, Rohit Asirvatham

Faculty Scholarship

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a laxer standard, …