Law Commons^™

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

Reframing Church Property Disputes In Washington State, Theodore G. Lee

Washington Law Review

Real property disputes between units or members of the same church are common in the United States. To resolve such disputes, the Supreme Court has endorsed two doctrines: the hierarchical deference approach and the neutral-principles of law approach. The Court has justified both doctrines on the First Amendment’s Establishment and Free Exercise Clauses, but this justification is problematic. Specifically, under the hierarchical deference approach courts must always give preferential treatment to one religious group over others—effectively endorsing a particular religion. On the other hand, courts can enforce their own interpretations of religious issues under the neutral-principles approach, thereby infringing free …

Constitutional Provisions Making Sharia “A” Or “The” Chief Source Of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, Clark B. Lombardi

Articles

The constitutions of many Arab countries provide that Islamic law ("shari'a") is a "source" of national law. Indeed, some make shari'a norms "a chief source," of state law. Other stronger provisions even declare them to be "the chief source" or "the only source" of legislation. There has been surprisingly little historical scholarship about these clauses, either in Arabic or in Western languages. There has also been almost no systematic comparative scholarship looking at the way that these clauses have been interpreted in different countries. In both Western scholarship and in popular Arab discourse one finds considerable confusion about where these …

Designing Islamic Constitutions: Past Trends And Options For A Democratic Future, Clark B. Lombardi

Articles

In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a "Sharia Guarantee Clause" depends to a large degree on questions of constitutional design -- on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then …