Law Commons^™

Transition Administration, Michael Herz, Katherine A. Shaw

Articles

The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and …

Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters

Duke Journal of Constitutional Law & Public Policy Sidebar

The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.

Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …

Trouble With Names: Commercial Speech And A New Approach To Food Product Label Regulation, William Cusack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There …

Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy Sidebar

Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in …

Ferpa And State Open Records Laws: What The North Carolina Supreme Court Got Wrong In Dth Media Corp. V. Folt, And How Courts & Congress Can Take Measures To Reconcile Privacy And Access Interests, Danielle Siegel

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past few years, courts across the country have confronted a common scenario. Members of the public and media request records from a public university pertaining to its investigations of sexual assault and misconduct on campus. Then, media outlets contend they have a right to access these records under state open records laws. But the university claims that it cannot, or will not, disclose the records under the Family Educational Rights and Privacy Act of 1974 ("FERPA").

The media outlet then files suit to compel disclosure. This Note explores the competing privacy and access interests at stake in this …

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany Day

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States healthcare system is one of the most expensive in the world. Unlike other products, when drug prices skyrocket, people may die. While advocating for various solutions, both the Biden and Trump administrations have recognized the importance of halting the rise of prescription drug prices. Most of the solutions advanced are focused on government-side initiatives, such as allowing Medicare to directly negotiate with pharmaceutical companies. Yet, the "march-in rights" built into the Bayh-Dole Act create an opportunity to set up a mechanism that would invite private actors to sue pharmaceutical companies for unconscionable drug pricing. The Bayh-Dole Act …

Textual Gerrymandering: The Eclipse Of Republican Government In An Era Of Statutory Populism, William N. Eskridge, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts …

Federalism And The Limits Of Subnational Political Heterogeneity, James A. Gardner

Journal Articles

With an epidemic of democratic backsliding now afflicting many of the world’s democracies, including the United States, some scholars have suggested that federalism might serve as a useful defense for liberal democracy by impeding the ability of an authoritarian central government to stamp it out at the subnational level. In this Essay, I dispute that contention. An examination of both federal theory on one hand and the behavior and tactics of central control employed by ancient and early modern empires on the other leads to the conclusion that the protective value of federalism against the effects of national authoritarianism is …

Constitutional Rights In The Time Of Covid-19: Sf Public Defender Sues Sf Superior Court, Alleging Violations Of Detainees’ Sixth Amendment Rights, Golden Gate University School Of Law

GGU Law Review Blog

“One of the most oppressive things a state can do is to take away your freedom and then deny you what’s necessary to win it back,” said Manojar Raju, San Francisco Public Defender, during a rally held on the front steps of San Francisco’s Hall of Justice.

On September 14, 2021, Raju filed a lawsuit against the Superior Court of California and the city of San Francisco. The lawsuit alleges that the San Francisco Superior Court has been routinely violating citizens’ Sixth Amendment right to a speedy trial.

In fact, as of August 30, 2021, there are about 429 people …

The Supreme Court And The Pro-Business Paradox, Elizabeth Pollman

Faculty Scholarship at Penn Carey Law

One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. This Comment examines recent Supreme Court cases to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. From Citizens United to Americans for Prosperity, the Roberts Court’s jurisprudence could ironically lead to a situation in which it has protected corporate political spending based on a view of the corporation as an “association of citizens,” but allows constitutional scrutiny to block actual participants from getting information about …

The 5th Annual Stonewall Lecture: Featuring Keynote Speaker Taylor Brown, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …

State Lawmakers Must Step In To Remedy Supreme Court Voting Rights Blunder, Rachel Landy, Jarrett Berg

Online Publications

This June, a 6-3 Supreme Court decision further eroded the Voting Rights Act (VRA) by upholding an Arizona law that disqualifies ballots cast by voters at any poll site other than the one assigned — an administrative technicality that has been shown to disproportionately impact minority communities in multiple states.

A Personal Journey Through The Rule Of Law In The South Pacific, W. K. Hastings

Judicature International

No abstract provided.

Separate But Free, Joshua E. Weishart

Law Faculty Scholarship

“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.

This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, …

Ag-Gag Illustrated, Jodi Lazare, Petroglyph Comics

Articles, Book Chapters, & Popular Press

In February 2021, Professor Jodi Lazare was contacted by Petroglyph Comics, a social justice comic studio, that wanted to turn her research on Canadian ag-gag legislation into a comic, accessible to all. The resulting comic is based on two articles by Prof. Lazare, the first published in the Alberta Law Journal and the second currently under review at a second Canadian law journal. Both articles combine her interests in animal law and constitutional law to suggest that recently adopted legislation limiting access to and information about industrially farmed animals in Canada constitutes an unjustified limit to the constitutional right …

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

All 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 …

The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick

Popular Media

No abstract provided.

Motion For Leave To File And Brief For Amici Curiae Legal Scholars And Academics In Support Of Petitioner, David Rudenstine

Amicus Briefs

Amici Curiae are legal scholars and academics who have dedicated their careers to the study, teaching and practice of United States constitutional law, including the death penalty and methods of execution. Many amici have written scholarly articles on these topics.

Many amici listed below earlier wrote to this Court in 2018 by submitting a brief in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), to apprise the Court of information regarding the availability of alternative methods of execution to be considered in clarifying the applicable Eighth Amendment standard for method-of-execution challenges. Amici agreed with the Court’s clear statement in …

Who Defends: Judge Sutton's Vision And The Challenge Of A Plural Executive, Katherine A. Shaw

Online Publications

It’s no secret that this is a perilous moment for American democracy. We’re nine months out from a deadly attack on the U.S. Capitol, launched with the explicit goal of disrupting the peaceful transfer of power following the 2020 presidential election. Congress appears gridlocked on basic questions of debt and spending, and the possibility of a default before the end of the year remains a live one, with the covid pandemic still ongoing. The U.S. Supreme Court is facing an unprecedented legitimacy deficit in the eyes of the public. Election experts warn that future American elections, including the 2024 election, …

An Open Governor’S Seat, Open Constitutional Question, And The Need For An Answer, Samuel Steele Mclelland, James R. Baxter

Arkansas Law Notes

Another election cycle always means a renewal of fresh lawsuits and legal questions, and 2022 is no exception. the announcement of Sarah Huckabee Sanders’s run for Governor of Arkansas reignites an interesting aspect of Arkansas’s Constitution: must a candidate for Governor live in the State of Arkansas for seven consecutive years, immediately preceding taking office? A final ruling by the Arkansas Supreme Court will give clarity and stability going forward for the most important elected position in the state.

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review SUpra

No abstract provided.

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb

Faculty Publications

The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Faculty Scholarship

No abstract provided.

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

Scholarly Works

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

The Free Speech Record Of The Roberts Court, William D. Araiza

Faculty Scholarship

No abstract provided.

Civic Education In Circumstances Of Constitutional Rot, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as “constitutional rot” in the United States. A twenty-first century civic education must meet challenges of polarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a “Sputnik moment for teaching civics”—seeing a link between the whitesupremacist/conspiracy-theory mob’s actions and the failure to instill civic virtue in “We the People.” To be capable of spurring national reconciliation and renewal, …

The Era Brief October 2021, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

We are excited to return to campus and rejoin the vibrant law school community. Our work at the ERA Project has taken on a renewed sense of urgency as we seek to advance sex equality in a time when the right to bodily autonomy is under threat from restrictions on reproductive and transgender rights.