Digital Commons Network^™

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 …

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. …

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 …

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 …

Transparency And The First, Mark Fenster

FIU Law Review

No abstract provided.

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

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.

(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.

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Menstrual Dignity And The Bar Exam, Marcy L. Karin, Margaret E. Johnson, Elizabeth B. Cooper

Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

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, …

Presidents And The U.S. Constitution: The Executive’S Role In Interpreting The Supreme Law Of The Land, Mitchell Scacchi

Honors Theses and Capstones

In 1832, President Andrew Jackson issued a veto message claiming the same duty as the Supreme Court to interpret the U.S. Constitution. Do modern presidents exercise the principal role in interpreting the U.S. Constitution that President Jackson claimed was their duty, and, if so, in what ways do they choose to articulate their interpretations? The hypothesis is that modern presidents have exercised a principal role in interpreting the U.S. Constitution similar to the interpretative duty expressed by President Jackson, and they perform this duty, in part, through the issuance of veto messages and signing statements. After a content analysis of …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

Blackness As Fighting Words, Etienne C. Toussaint

Faculty Publications

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the …

Family Law By The Numbers: The Story That Casebooks Tell, Laura T. Kessler

Utah Law Faculty Scholarship

This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field.

The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages …

An Unfair Cross Section: Federal Jurisdiction For Indian Country Crimes Dismantles Jury Community Conscience, Alana Paris

Northwestern Journal of Law & Social Policy

Under the Sixth Amendment to the United States Constitution, federal jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under …

Predictive Facts, Brent Ferguson

Washington Law Review

A substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations.

Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact—facts not specific to a certain …

Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng

Research Collection Yong Pung How School Of Law

This paper proposes to study constitutional and administrative law in Singapore through the lenses of Atiyah’s and Summers’ concepts of form and substance in order to discern fruitful avenues for the development of Singapore constitutional and administrative law. While the concepts of form and substance in the context of constitutional law are often associated with constitutional interpretation, they can also be fruitfully applied to other areas of constitutional and administrative law to shed light on the potential trajectories of Singapore law. The intent of this paper is to apply Atiyah’s and Summers’ concepts of form and substance to Singapore constitutional …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus

Book Chapters

This chapter discusses how Lin Manuel Miranda's Hamilton: An American Musical is changing the future of originalism. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, but because readings of Founding era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton's cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative has retold America's …

Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit Rubinstein Reiss

ConLawNOW

The United States’ response to the COVID-19 pandemic was sub-optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in the Centers for Disease Control and Prevention (CDC) efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Directors, in an unusual step, published an op-ed calling out political intervention in the CDC. This article proposes two changes to strengthen the CDC’s institutional independence: codifying the CDC’s role in preventing diseases and reducing harms in a statute, and restructuring the agency …

Unconstitutional Parenthood, Jeffrey A. Parness

College of Law Faculty Publications

A flurry of recent noteworthy articles have urged the U.S. Supreme Court to elaborate further on the federal constitutional requisites for legal parenthood relevant to child custody, child visitation, and allocation of parental responsibility. These articles appear under such titles as Constitution of Parenthood, Constitutional Parenthood, Constitutional Parentage, and The Constitutionalization of Fatherhood. They follow recent initiatives by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) suggesting new forms of childcare parenthood. And they follow new parentage law initiatives by state legislatures and courts. This Article goes beyond these …

Putting The Constitution In Its Place, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The fact that Donald Trump became President in 2016, despite losing the popular vote by a substantial margin, has brought renewed attention to the Electoral College system. In "Forging the American Nation," Shlomo Slonim provides an illuminating account of the process that led to this bizarre method of determining the outcome of presidential elections. But Professor Slonim's book also provides insights into the origins of many other structural features of our constitutional system that are of questionable value in a modern democracy, such as elections by state for the Senate, the Senate's exclusive exercise of legislative authority for treaties and …