Digital Commons Network^™

Against Congressional Case Snatching, Ronald J. Krotoszynski, Atticus Deprospro

William & Mary Law Review

Congress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of …

The State And The Patriarch: Rewriting Charan Lal Sahu, Rakesh Shrouti, Rajkumar Keswani, Nasrin Bi And Others V. Union Of India (1990) 1 Scc 613, Sannoy Wright Das, Ananyaa Alexander Mazumdar

Vanderbilt Law School Faculty Publications

In this contribution, as part of the Indian Feminist Judgement Project, we reconsider the decision of the Supreme Court of India in the Charan Lal Sahu case that followed the Bhopal gas leak tragedy. We present a dissenting opinion on the case, finding that the law empowering the State to supplant the victim-survivors as plaintiffs was unconstitutional. Alongside, we offer a brief commentary on why this finding comports with what a feminist judge on the bench might have decided. We consider a variety of ways in which feminist criticism of the majority decision might proceed, and how this criticism informs …

The Long History Of Feminist Legal Theory, Tracy Thomas

Con Law Center Articles and Publications

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred …

Cheap Speech Creation, 54 U.C. Davis L. Rev. 2405 (2021), Alan K. Chen

Sturm College of Law: Faculty Scholarship

As we look back on Professor Eugene Volokh’s predictive article about cheap speech, it is worth examining what other elements of the speech and media landscape, as well as the supporting legal infrastructure, have changed over that same period. This Essay focuses on the substantial reduction in the cost of speech creation, as opposed to distribution. After briefly discussing the accuracy of many of Volokh’s most important predictions, it examines innovative technological changes that have enabled a larger number and more diverse range of people to engage in speech creation because of the rapidly shrinking costs of doing so by …

Freedom Of The Press In U.S. Protests, Abigail Rosenthal

Human Rights Brief

No abstract provided.

Digital Disease Surveillance, Alan Z. Rozenshtein

American University Law Review

The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap.

Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious disease outbreaks. Part II explains how the “special needs” exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what …

Congressional Surveillance, Aaron R. Copper

American University Law Review

In recent years, Congress has increasingly used electronic surveillance in high profile investigations. Reactions to what this Article calls “congressional surveillance” indicate a deep unease among both legal scholars and the broader public about the nature of Congress’s surveillance authority and its normative implications. Despite our ongoing preoccupation with government surveillance, congressional surveillance remains largely unexplored. There is virtually no discussion of how congressional surveillance is treated under key statutory and Fourth Amendment constraints; no consideration of the process or political limits of congressional surveillance; and little scrutiny of congressional surveillance as a tool within the separation of powers.

This …

Honoring The New Mexico Constitution And Its History: New Mexico’S Unique Blaine Amendment And Its Application In Moses V. Ruszkowski, Kori Nau

New Mexico Law Review

Over the past two decades, many scholars have taken a fresh look at state constitutional provisions that derive from the federal Blaine amendment that was proposed in 1875. The New Mexico Supreme Court was tasked with analyzing New Mexico’s version of the Blaine amendment as it applied to the state’s Instructional Material Law in Moses v. Ruszkowksi. The case took a long journey through the New Mexico judiciary and was appealed to the United States Supreme Court. On remand from the U.S. Supreme Court, the New Mexico Supreme Court concluded that New Mexico’s derivative of the Blaine amendment, Article XII, …

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Elisabeth Haub School of Law Faculty Publications

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Revenge Of The Sixth: The Constitutional Reckoning Of Pandemic Justice, Brandon Marc Draper

Marquette Law Review

The Sixth Amendment’s criminal jury right is integral to the United States

criminal justice system. While this right is also implicated by the Due Process

Clause, Equal Protection Clause, and several federal and state statutes,

criminal jury trial rates have been declining for decades, down from

approximately 20% to 2% between 1988 to 2018. This dramatic drop in the

rate of criminal jury trials is an effective measure of the decreased access to

fair and constitutional criminal jury trials.

Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros

Journal Articles

This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools. Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to …

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

National Legal Paradigms For Public Health Emergency Responses, James G. Hodge Jr.

American University Law Review

The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government—federal or state—should actually “call the shots” to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a repeat performance of U.S. COVID-19 response efforts to forthcoming major health threats. …

When Thoughts And Prayers Are Not Enough: Why Age-Based Restrictions On Purchasing Firearms Pass Constitutional Muster, Madeline P. Fuller

American University Law Review

After the tragic shooting at Marjory Stoneman Douglas High School that took the lives of seventeen students and staff members and injured countless others, the community debated how this event could have been prevented. There were security failures on the part of the school and police—unlocked doors, passive deputies and a security guard, and a broken PA system—all of which may have lessened the casualties had they been operating properly. However, these security measures might not have been tested and found lacking if another preventative measure had already taken place: prohibiting the young shooter from legally purchasing a weapon.

Florida …

Vaccination And The Child’S Right To An Open Future, Elias Feldman

Lewis & Clark Law Review

States commonly require the vaccination of children through their parens pa- triae and police powers. But many states also allow parents to opt for non- medical exemptions from these vaccination requirements, contributing to the emergence of a national vaccine hesitancy crisis. By permitting parents not to vaccinate their children, do states that grant these exemptions violate children’s rights? This Article posits that children may indeed have a right to be vac- cinated and thus protected against contracting a disease for which there is a scientifically proven vaccine. This Article examines this question through the lens of Joel Feinberg’s theory of …

The Structure Of Intermediate Review, R. Randall Kelso

Lewis & Clark Law Review

Today, there are two well-established versions of intermediate review: stand- ard intermediate review, used for cases like gender discrimination or content-neutral regulations of speech in a public forum, and a heightened intermediate review standard used for content-based, subject-matter regulations of commercial speech under Central Hudson. Yet, in actual use, four other kinds of intermediate review tests have been formulated by the Court in some cases. These four should be viewed as “mutations” of the two kinds of intermediate review proper to apply. This Article discusses both the well-established versions of intermediate review, and the four variations on intermediate review applied …

Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue

Faculty Scholarship

The stability of the Supreme Court’s size and procedures is a critical source of legitimacy, but reforms might protect the Court’s independence from politics. Perceptions among members of the public that justices are political actors harms the rule of law. This report discusses reforms to ensure that each president receives the same number of appointments to the Supreme Court. The report also considers how to guarantee each nominee a Senate hearing and reforms to the retirement stage of justices’ tenures.

Foreword: A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, Rona Kaufman

Law Faculty Publications

One hundred years have passed since (white) women attained the right to vote. In the century since the Nineteenth Amendment was ratified, American women have transitioned from an existence as mere objects of history to becoming active subjects of history. In 2019 and 2020, many programs and conferences were organized to celebrate the achievements of America's women and commemorate the 100th anniversary of women's suffrage. The Section on Women in Legal Education hosted a program at the January 2020 American Association of Law Schools (AALS) Annual Meeting titled, “A Century Since Suffrage: How Did We Get Here? Where Will We …

Popular Regulation? State Constitutional Amendment And The Administrative State, Jonathan L. Marshfield

UF Law Faculty Publications

When we think about administrative law, we tend to dwell on issues related to federal agencies and the federal laws and institutions that govern those agencies. But the federal government is only one part of a much larger regulatory structure in the United States. State agencies are a significant and crucial component of the contemporary regularly regime, and they deserve more focused scholarly attention. This is especially true because although state agencies perform functions analogous to federal agencies (i.e., they promulgate rules, adjudicate disputes, and monitor private actors), they perform those functions in a very different institutional environment. This article …

Let's Make Some "Scents" Of Our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell Of Burnt Marijuana As Probable Cause To Search A Vehicle, Alessandra Dumenigo

St. Thomas Law Review

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth …

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …

Transparency And The First, Mark Fenster

FIU Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.

(Un)Masking The Truth - The Cruel And Unusual Punishment Of Prisoners Amidst The Covid-19 Pandemic, Ariel Berkowitz

Touro Law Review

No abstract provided.

Bundle Of Joy: Why Same-Sex Married Couples Have A Constitutional Right To Enter Into Gestational Surrogacy Agreements, Benjamin H. Berman

Touro Law Review

No abstract provided.

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.

A Tribute To The Enduring Constitution (Book Review), Mp Singh

National Law School of India Review

No abstract provided.

Property Rights: Fiercely Contested, Strongly Guarded, And Continually Defended. How The Supreme Court's Decision In Cedar Point Emphasized The Court's Devotion To Private Property Rights, Sarah Haddon

American University Law Review

In 1975, California’s Agricultural Labor Relations Board (the “Board”) enacted a regulation allowing union organizers to access agricultural employers’ private properties “for the purpose of meeting and talking with employees and soliciting their support” (the “access regulation”). The access regulation does not require the union organizers to obtain consent before entering employers’ properties; instead, union organizers must only file a “written notice of intention to take access.” The notice provides the union organizers access to an employer’s property for three hours a day up to 120 days each year during the hour before the workday, during lunch, and after the …