Law Commons^™

Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

Who's Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crisis, Charles Duan, Christopher J. Morten

Articles in Law Reviews & Other Academic Journals

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict--indeed, have already begun to conflict--with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government paid compensation under 28 U. S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought …

Law Library Blog (September 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Is This A Christian Nation?: Virtual Symposium September 25, 2020, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

Articles

Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

What Role Can Regulations Play? A South African Public Law Perspective On The Potential Response Through Regulations To Constitutional Reservations About The Copyright Amendment Bill, B-13b Of 2017, Jonathan Klaaren

Joint PIJIP/TLS Research Paper Series

This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.

After a background section …

Is The Establishment Clause Asymmetrical?, Sam Foer

Senior Honors Projects

Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto …

The New Maternity, Courtney Megan Cahill

Scholarly Publications

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers.

Constitutional law's …

Law School News: Rwu Law Professors Win Release For Two Immigrants At Risk For Covid-19 04-24-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber

Law Faculty Briefs and Court Documents

The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it prohibits. …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Do We Intend To Keep Our Republic?, John M. Greabe

Law Faculty Scholarship

[Excerpt] Commentators recently have reminded us of a famous statement Benjamin Franklin allegedly made upon exiting Independence Hall on the final day of the 1787 Constitutional Convention. When asked whether the proposed Constitution would establish a monarchy or a republic, Franklin supposedly answered: "A republic, if you can keep it."

The anecdote, which both inspired the title of Supreme Court Justice Neil Gorsuch's recent book and was recounted by Speaker of the House Nancy Pelosi when she announced the impeachment inquiry into the conduct of the president, reminds us that our republican form of government is not to be taken …

Vertical Stare Decisis And Three-Judge District Courts, Michael T. Morley

Scholarly Publications

Three-judge federal district courts have jurisdiction over many issues central to our democratic system, including constitutional challenges to congressional and legislative districts, as well as to certain federal campaign-finance statutes. They are similarly responsible for enforcing key provisions of the Voting Rights Act. Litigants often have the right to appeal their rulings directly to the U.S. Supreme Court. Because of this unusual appellate process, courts and commentators disagree on whether such three-judge district court panels are bound by circuit precedent or instead are free to adjudicate these critical issues constrained only by U.S. Supreme Court rulings.

The applicability of court …

Why A Wealth Tax Is Definitely Constitutional, John R. Brooks, David Gamage

Georgetown Law Faculty Publications and Other Works

Wealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”

These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform …

Humanity For Asylum Seekers: How Migrant Protection Protocols And The March 20th Cdc Order Violate The Constitutional Rights Of Asylum Seekers During The Covid-19 Pandemic, Madison Beck

Center for Health Law Policy and Bioethics

In late 2018, the Trump Administration introduced Migrant Protection Protocols (MPP), also known as the Remain in Mexico Policy, to curb illegal immigration. The protocols allow the U.S. to remove immigrants, including asylum seekers, to Mexico while their claims are processed. This is problematic on its own, but even more so during the COVID-19 pandemic; makeshift asylum tent-camps are home to thousands of vulnerable individuals where viral spread would be devastating. Additionally, in March 2020, the Centers for Disease Control and Prevention (CDC) issued an “order suspending introduction of certain persons from countries where a communicable disease exists” further worsening …

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system.1 The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, 2 examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system.3 To date, most scholarship evaluating youth prosecution has focused on our country’s …

Citizen Soldiers And The Foundation Fusion Of Masculinity, Citizenship, And Military Service, Jamie Abrams, Nickole Durbin

Articles in Law Reviews & Other Academic Journals

Sarah Livingston Jay famously toasted revelers in 1783: "May all our citizens be soldiers, and all our soldiers citizens." This toast conveyed "a foundational fusion" within our republican government tradition-coupling military service, citizenship, and masculinities.' The Akron Law School's conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

In …

Law Library Blog (January 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner

All Faculty Scholarship

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Constitutional Scholars As Constitutional Actors, Liora Lazarus

All Faculty Publications

Few constitutional scholars would dispute that Carl Schmitt played a legitimating role in the downfall of the Weimar Republic, or that Albert Venn Dicey has defined the UK and other commonwealth constitutions. Why then is there no general conception of constitutional scholars as constitutional actors? It is now well established that ‘to understand how our Constitution and laws are practised, it is necessary to study and understand many more institutions in the system than simply the Judiciary’ While the focus has broadened to include a range of constitutional office holders and institutions, little has been said about the role and …

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

Essentially Elective: The Law And Ideology Of Restricting Abortion During The Covid-19 Pandemic, B. Jessie Hill

Faculty Publications

During the COVID-19 pandemic, several states adopted orders temporarily suspending elective surgeries and procedures. A subset of those states moved to limit abortions under those orders, provoking emergency litigation to keep abortion clinics open and functioning. No similar lawsuits have been necessary to protect access to other time-sensitive medical procedures. So why was abortion singled out for disparate treatment?

This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the authority of executive orders banning non-essential or elective procedures. It argues that abortion was singled out in two …

Protecting Against An Unable President: Reforms For Invoking The 25th Amendment And Overseeing Presidential Nuclear Launch Authority, Louis Cholden-Brown, Daisy De Wolff, Marcello Figueroa, Kathleen Mccullough

Faculty Scholarship

The immense powers of the presidency and the vast array of global threats demand a physically and mentally capable president. To help ensure able presidential leadership, this report advocates reforms related to the 25th Amendment, including proposals for an “other body” to act with the vice president in certain circumstances to declare the president unable and a mechanism for officials to report concerns about the president’s capacity. The report also recommends new checks on the president’s authority to use nuclear weapons, such as procedures for notifying top national security officials when use is contemplated.

This report was researched and written …

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan Chapman

Scholarly Works

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record.

Intriguingly, …

Liberalism And The Distinctiveness Of Religious Belief, Abner S. Greene

Faculty Scholarship

Finding the appropriate sweet spot for religion’s role in the state and how state action may affect the lives of religious people continues to be elusive. Cécile Laborde’s ambitious book Liberalism’s Religion comes down firmly on the side of seeing religion as not distinctive, even in a liberal democracy. To the extent that nonestablishment and free exercise norms should prevail, they should prevail insofar as we can disaggregate religion into components that it shares with nonreligious belief and practice. In this review essay, I advance a position on which Laborde spends little time in her book — religion is distinctive …

Why The House Of Representatives Must Be Expanded And How Today’S Congress Can Make It Happen, Caroline Kane, Gianni Mascioli, Michael Mcgarry, Meira Nagel

Faculty Scholarship

The House of Representatives was designed to expand alongside the country’s population—yet its membership stopped growing a century ago. Larger and, in some cases, unequal sized congressional districts have left Americans with worse representation, including in the Electoral College, which allocates electors partially on the size of states’ House delegations. This report recommends tying the House’s size to the cube root of the nation’s population, which would lead to 141 more seats. It also calls for an approach to drawing districts that would eliminate gerrymandering.

This report was researched and written during the 2018-2019 academic year by students in Fordham …

Toward An Independent Administration Of Justice: Proposals To Insulate The Department Of Justice From Improper Political Interference, Rebecca Cho, Louis Cholden-Brown, Marcello Figueroa

Faculty Scholarship

The rule of law is undermined when political and personal interests motivate criminal prosecutions. This report advances proposals for ensuring that the federal criminal justice system is administered uniformly based on the facts and the law. It recommends a law preventing the president from interfering in specific prosecutions, another law establishing responsibilities for prosecutors who receive improper orders, and new conflict of interest regulations for Department of Justice officials.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen …

Presidents Must Be Elected Popularly: Examining Proposals And Identifying The Natural Endpoint Of Electoral College Reform, Gianni Mascioli, Caroline Kane, Meira Nagel, Michael Mcgarry, Ezra Medina, Jenny Brejt, Siobhan D'Angelo

Faculty Scholarship

The Electoral College effectively disenfranchises voters who live outside the few states that decide presidential elections. This report endorses a change in the way electoral votes are allocated to ensure that Americans’ votes receive the same weight. States should sign on to the National Popular Vote Interstate Compact, an agreement among states to allocate their electoral votes to the winner of the national popular vote. Ranked choice voting should also be employed to ensure that candidates receive majority support.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution …