Law Commons^™

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

Personal Data Is Not Digital Contraband: Why The Protecting Data At The Border Act Is Needed, Raaid M. R. Bakridi

Student Journal of Information Privacy Law

In Fiscal Year 2024, U.S. Customs and Border Protection (CBP) conducted over 46,000 warrantless searches at international borders, raising significant privacy concerns. This article examines the constitutionality of these searches, focusing on the federal government’s use of the “border search exception” to the Fourth Amendment, which traditionally allows warrantless searches at the border to safeguard national security. However, applying this exception to electronic devices, which store vast amounts of personal data, presents new challenges, for such electronic devices often reveal intimate details of an individual's life. The article critiques the government's use of such exceptions and the argument that constitutional …

Sex And Control In Redeemer Georgia, Anthony Michael Kreis

Georgia State University Law Review

This Essay explores the interplay of history, law, and morality behind the first abortion law in Georgia. Examining the philosophical underpinnings of liberty and equality as articulated in Georgia’s constitutional history through time, this Essay highlights the moral contradictions inherent in the legal frameworks of Reconstruction Georgia. The origin of Georgia’s 1876 abortion law contains multitudes—rooted in race-based contestations for political power, the sociological evolution of medical practice, and evolving attitudes on individual rights. At times, White elites used abortion to attack Yankee culture and stir up racist fears about moral contagion associated with Radical Republicans. To this end, when …

How To Start (Or Stop) A War On Crime: A Conceptual Cookbook, Brandon E. Beck

Georgia State University Law Review

Beginning in the early 1990s, the Executive Branch began an era of enforcement of federal firearms crime that was different in kind and degree from the prior seventy-five years. The federal crime policies of the 1990s and 2000s led to a significant increase both in the total number of federal firearms prosecutions and in how often mandatoryminimum statutes were charged. But later, in the 2010s and 2020s, there were times when the number of firearms prosecutions stabilized, and the number of mandatory-minimum sentences decreased. This Article seeks to use federal firearms prosecutions, in this era of enforcement, as a lens …

What Are “Wartime Authorities” And When Can The President Use Them? An Expert Q&A, Tess Bridgeman, Rebecca Ingber, Scott Roehm

Online Publications

The first several months of President Donald Trump’s second administration have been marred by the chaotic and often unlawful use, or threatened use, of wartime and terrorism-related authorities for what are essentially domestic immigration or criminal law enforcement purposes. This is not the first time a president has sought to push the boundaries of his wartime powers, or outright claimed those he did not have, but it may well be the most extreme. Indeed, Trump’s reliance on wartime authorities in contexts entirely divorced from armed conflict, or even the threat of force against the United States, puts the country on …

Church And State Relationships Explored In Mississippi's Foster Care System, Olivia Gray

Honors Theses

Historically, the entities of church and state were never meant to be wholly separate. Yet, varying ideas as to what this relationship should be evolved over centuries to become the notion of a separation of church and state that Americans cling to today. Despite common misconceptions regarding this ideal, Mississippi’s foster care system maintains strong and beneficial relationships with local churches throughout the state to better impact and meet the needs of foster children in local communities.

This research seeks to explore the relationship between the church and the state utilizing the example of Mississippi’s foster care system. The findings …

Ai Inventorship: Recognizing The True Inventors Requires Change, Nicholas Scambia

St. John's Law Review

(Excerpt)

The Analytical Engine was conceived almost two hundred years ago—a general-purpose programmable computing engine which had essential features resembling a modern-day computer. While truly a marvel for its time, the Analytical Engine lacked the ability to perform functions on its own, as it was only able to do tasks for which it was programmed.

Today, artificial intelligence (“AI”) has become increasingly popular and powerful and is projected to keep growing. AI demonstrated its autonomous strength to the whole world on national TV when IBM’s Watson competed on Jeopardy!, beating the game show’s legends Ken Jennings and Brad Rutter. Since …

Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review

Maine Law Review

Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …

Examining The Brazilian Supreme Federal Court’S Expanded Powers In The Bolsonaro Era: A Win For Democracy Or A Turn Toward Autocracy?, Théo G. De Sá-Kaye

University of Miami Inter-American Law Review

As Jair Bolsonaro rose to popularity and was elected the 38th president of Brazil in 2018, the global community grew concerned over his very public disdain for the country’s democratic institutions and admiration for Brazil’s 22-year-long military dictatorship. The Bolsonaro administration was marked by repeated attacks on the judiciary, a heavily criticized response to the COVID-19 pandemic, and, eventually, the storming of Congress and the Brazilian Supreme Court by Bolsonaro’s supporters– mirroring the January 6th insurrection in the U.S. However, the most significant aspect of the Bolsonaro presidency may not lie solely in his actions, but in the response from …

Prenatal Personhood, State Duties, And Congress’S Abortion Power Under The Fourteenth Amendment, David R. Upham

Catholic University Law Review

Many antiabortion jurists have contended that by its original meaning, the Fourteenth Amendment not only (1) recognizes the personhood of prenatal human beings, but also (2) requires states to have and enforce the antiabortion laws necessary to the equal protection of these prenatal persons, and even (3) empowers Congress to pass remedial antiabortion laws where the state fail to protect such persons.

In this essay, I will contend that the Amendment does indeed recognize the personhood of prenatal human beings, but largely leaves with the states the authority to determine the scope of the protection to be afforded such persons. …

Constitutional And Legislative Issues Raised By The Entrapment Defense In Maine, Maine Law Review

Maine Law Review

In recent years the increase in undercover investigative activity by police agents has generated considerable interest in the defense of entrapment. The entrapment defense to a criminal prosecution has been recognized either judicially or legislatively in most jurisdictions in the United States. The proper formulation of the defense, however, has given rise to conflicting opinions involving various evidentiary and constitutional considerations. In raising the defense of entrapment, a defendant does not deny that he committed the acts constituting the crime, but rather asserts that, on grounds of public policy, he should not be convicted. In Maine, the defense of entrapment …

Maine's Reception Of The Common Law, Maine Law Review

Maine Law Review

From the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine's Supreme Judicial Court, reception "was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals." After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen

Maine Law Review

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …

The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey

Maine Law Review

Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

When Rights Require Permission: The Discriminatory History Of Licensing Laws For Firearm Possession, Bob Barr, Joseph G.S. Greenlee

Dickinson Law Review (2017-Present)

No abstract provided.

The Wrongly Read Right: Insurrection And The Second Amendment Right To Bear Arms, Aman Mcleod, Jacob M. Jones

Dickinson Law Review (2017-Present)

Several judges and scholars have interpreted the Second Amendment as creating a right to bear arms to facilitate armed resistance against the government whenever it threatens to impose tyranny. These arguments have been made in books, scholarly articles, and court decisions. Many of the proponents of the pro-armed insurrection interpretation of the Second Amendment root this point of view in the history of the right to bear arms in the Anglo-American legal tradition. This Article argues that the Second Amendment does not create a right to bear arms to resist government authority because such a right is inconsistent with several …

Big Business As Gun Control, David B. Kopel, George A. Mocsary, Bhav Ninder Singh

Dickinson Law Review (2017-Present)

Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of “reputational risk,” to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.

Social media platforms compound …

Brennan And State Constitutions, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The former Great Gorge Playboy Resort in New Jersey seems an unlikely place to help form a jurisprudential movement toward reliance on state constitutions to protect civil rights and liberties.

One need only turn back the clock to 1976 to find the story of one of the most significant moments in the rise of state constitutions. Anyone who is steeped in this movement is likely familiar with the lead article in the January 1977 issue of the Harvard Law Review, “State Constitutions and the Protection of Individual Rights.” The author was U.S. Supreme Court Justice William J. Brennan Jr.

Unfinished Liberties, Inevitable Balancing, Sherif Girgis

Journal Articles

From the Article

In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is bound to fail. Though avoidable for many constitutional rights, balancing is inevitable for general liberties like religion, the Second Amendment, and speech. This inevitability arises not from gaps in text or history but from these liberties’ special role.

General liberties are irreducibly open-ended—not reducible …

Beyond Non-Recognition: U.S.–Taiwan Trade Agreements In Indo-Pacific Dynamics, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

At the core of U.S.-China tensions and the Indo-Pacific strategy, the evolving legal frameworks that govern U.S.-Taiwan relations present legal intricacies under American and international law. The Article provides the first comprehensive analysis of the groundbreaking U.S.-Taiwan Initiative on 21st-Century Trade, the only Congress-approved trade agreement during the Biden administration. It argues that within the space of non-recognition, the United States has accorded Taiwan diverse and incremental forms of legal recognition, which culminated in the Initiative and its Implementation Act. Through an interdisciplinary lens, the Article develops a theoretical framework that bridges recognition theories under international law and international relations. …

Criminal Contempt In Maine: Constitutionally Protected Or Neglected?, Christopher D. Hardy

Maine Law Review

The power to punish contempt of court is an ancient power justified as inherent and necessary for the effective administration of justice. Because criminal contempts are willful challenges to the power of a court to maintain control over its proceedings, contempts are acts which serve to lessen the dignity and authority of the court. Certainly, the maintenance of decorum in the courtrooms is of paramount importance. Absent the ability to sanction willful disobedience, a court is powerless to enforce its decrees or control its proceedings. Yet it is a power readily open to abuse; application of this power must be …

We Were All Originalists . . . For A Minute: Has The Supreme Court Abandoned The Search For Original Public Meaning? Should It?, Steven Semeraro

San Diego Law Review

Predicting the Supreme Court’s next turn is tricky business. The two obstruction-of-justice cases considered here may turn out to be what used to be called “sports,” i.e., cases where the Court used a mode of analysis that it abandons in future cases without explanation. Perhaps, though, these cases hold the promise of a new, more open frontier of judicial interpretation in the service of our self-governing spirit. One in which courts and the parties to litigation cooperatively seek to advance legislative purposes to better our society.

Part II traces the development of originalism, a textualist approach to legal interpretation arising …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

The Relationship Between Religion And The State “Islam And The Constitution As A Model”, Ahmad Hosni Ashqar, Majed Abbadi

An-Najah University Journal for Research - B (Humanities)

Objective: This study aims to investigate the relationship between religion and the state within its constitutional framework when constitutional texts include a specific religion for the state, which makes this - when applied legislatively - a thorny and ambiguous issue. Methodology: This study, through the descriptive analytical approach, examines the different forms of possible relations between religion and the state to develop democratic constitutions. Results: The study concluded several results, the most prominent of which is that considering Islam the official religion of the state involves respecting the rights of Muslims to practice their duties and organize …

The Ideational Dimension Of Judicial Power, Allen C. Sumrall

Marquette Law Review

The judiciary dominates contemporary American politics. In the United States, courts have overcome their humble origins to act as central figures in nearly every major policy dispute and separation of powers dispute. To explain this development, scholars have documented the increase in the federal judiciary’s institutional capacity and resources. Most accounts of the judiciary’s changing role in American constitutional politics focus on the courts’ expanded jurisdiction, the statutes that channel judicial review, the courts’ material resources, or changes to how politicians harness or respond to the judiciary. But focusing on these more formal institutional changes only gets us so far. …

Our Partisan Supreme Court And An Essential First Step Toward Reclaiming What's Been Lost, Gary Simson

Articles

Partisan decision-making by even only one Supreme Court Justice in a single case is not a trivial matter. The ill effects are greatly compounded when five or more Justices of a similar partisan bent regularly deliberate about, and decide, cases in a partisan way. At that point, we’ve got what can fairly be described as a partisan Supreme Court.

I argue in this Article that, to all of our great misfortune, a partisan Supreme Court is very much what we’ve got today. On a more hopeful note, though, I also argue that although reforming the Court to be a much …

The Social Life Of Free Speech: Who Gets To Speak And Express?, Anurag Bhaskar

National Law School of India Review

The interdisciplinary scholarship on free speech, though developed outside the Indian context, underscores the necessity of re-examining free speech not just as an individual right against the State, but as a socially embedded phenomenon, conditioned by historical inequalities and prevailing systems of power. Building on this framework, this article advances an anti-caste perspective on freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. It examines the contours of free speech in a heterogeneous and hierarchically structured society, interrogating how caste hierarchies have shaped the boundaries of acceptable speech, and determining whose speech is heard and whose is …