Law Commons^™

Republication Liability On The Web, Jeffrey Standen

Marquette Law Review

The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …

Are People In Federal Territories Part Of “We The People Of The United States”?, Gary S. Lawson, Guy Seidman

Faculty Scholarship

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the …

Hip Hop And The Law : Presented By Intellectual Property Law Association 03/31/2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Religious Soft Power In Russian Foreign Policy: Constitutional Change And The Russian Orthodox Church, Robert C. Blitt

Scholarly Works

In this policy brief, Robert C. Blitt explores how the Kremlin continues to deepen its reliance on the Russian Orthodox Church-Moscow Patriarchate (ROC) as a lever of soft power in Russian foreign policy. Constitutional amendments ratified in July 2020 suggest that this church-state partnership is poised to grow stronger in the coming years. Recognizing that the ROC’s international undertakings function to echo Kremlin objectives, policymakers should consider scrutinizing church activities and interactions with civil society and government interlocutors, with an eye toward identifying and minimizing opportunities for Kremlin influence and interference.

This policy brief was written as part of the …

The New Due Process: Fairness In A Fee-Driven State, Glenn Harlan Reynolds

Scholarly Works

Many parts of the criminal justice system are funded by revenue from "users" -- i.e., the accused, in the form of fines, fees, and forfeitures. Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, we argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function. Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest …

Slavery And The History Of Congress's Enumerated Powers, Jeffrey Schmitt

Arkansas Law Review

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Prosecutorial Supervision Over The Observance Of The Rights Of Minors, Ahmedov Farhod Xusanovich

ProAcademy

The article considers the prosecutor's supervision over the investigation of crimes in the field of information technology. In addition, it was concluded that the participation of the prosecutor in the civil process is effective, but not fully. It is necessary to expand the powers of the prosecutor to apply to the courts and intervene in the process to give an opinion, the legal grounds for the participation of the prosecutor in the consideration and resolution of civil cases on the protection of the rights and legitimate interests of minors, and also to provide the prosecutor with the right to participate …

Giving The Equal Rights Amendment Teeth: A Proposal For Gender Equality Legislation Modeled After The Civil Rights Act Of 1964, Samantha Gagnon

St. John's Law Review

(Excerpt)

Contrary to the belief of eighty percent of Americans, the U.S. Constitution does not prohibit discrimination on the basis of sex. The effect of this lack of protection can be seen in every corner of our society, including economic inequalities and a lack of representation in leadership. For almost one hundred years, women’s organizations and activists have attempted to rectify this by advocating for the inclusion of an Equal Rights Amendment (ERA) in the Constitution. In the past few years, there has been a revived push for the ERA due to the amendment’s first congressional hearing in thirty-six years, …

Tinhatting The Constitution: Originalism As A Fandom, Stacey M. Lantagne

Faculty Scholarship

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves …

Founding The Marshall-Brennan Constitutional Literacy Project, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

There are many different approaches to civic literacy, reflecting the dedication of so many individuals and organizations and their creativity committed to the task. For the Marshall-Brennan Constitutional Literacy Project, the approach has been to have law students educate young people about their rights through Supreme Court cases and moot court arguments.

Reparations And The International Law Origin Story, John Linarelli

Journal of Race, Gender, and Ethnicity

No abstract provided.

Lawyers And The Lies They Tell, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of their fiduciary relationships with courts and clients. For instance, states can sanction lawyers for some speech inside a courtroom that would be protected if uttered by a non-lawyer. This Article explores whether lawyers’ free speech rights should also be different from those of other speakers when lawyers, acting on their own behalf, participate in political discourse. Applying the current First Amendment framework, the authors question the bar’s assumption that, simply because lawyers are subject to rules of professional conduct, courts can …

Restoring Title Ix’S Constitutional Integrity, Elizabeth Kaufer Busch, William E. Thro

Marquette Sports Law Review

No abstract provided.

Bargain Basement Progressivity? Constitutional Flat Taxes, Demogrants, And Progressive Income Taxation, Samuel D. Brunson

Faculty Publications & Other Works

State and local governments raise revenue in three primary ways: property, sales, and income taxes. Property and sales taxes tend to impose a higher burden on low-income households. To ensure the fairness and progressivity of their overall revenue system, states need their in-come tax to be sufficiently progressive.

Four states face an apparently insurmountable barrier to progressive income taxation: their state constitutions mandate that any income tax must have a flat rate, applicable to all taxpayers. Without a constitutional amendment, a difficult process, they cannot adopt marginal rates that increase as income increases.

While the impediment appears insurmountable, however, it …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Faculty Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger

Touro Law Review

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

Faculty Scholarship

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

Do Local Governments Really Have Too Much Power? Understanding The National League Of Cities' Principles Of Home Rule For The 21st Century, Nestor M. Davidson, Richard Schragger

Faculty Scholarship

This Article explains and defends the National League of Cities’ Principles of Home Rule for the 21st Century, which the authors participated in drafting. The Principles project both articulates a vision of state-local relations appropriate to an urban age and, as with previous efforts stretching back to the Progressive Era, includes a model constitutional home rule article designed to serve as the foundation for state-level constitutional law reform. This Article explains the origins of the Principles, outlines the major components of its model constitutional provision, and defends the model against a set of criticisms common to this and past home-rule …

Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green

Faculty Scholarship

No abstract provided.

America’S Racial Stain: The Taint Argument And The Limits Of Constitutional Law And Rhetoric, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of …

Remapping Constitutional Theory, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.

The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

State Constitutions And Youth Voting Rights, Joshua A. Douglas

Law Faculty Scholarly Articles

Young voters suffer the lowest turnout rates in American elections. One study shows that younger voters face numerous barriers when attempting to cast a ballot, such as work responsibilities, not receiving an absentee ballot in time, inability to find or access their polling place, voter ID problems, or other issues. Many state election laws are a labyrinth of rules and regulations that make it more difficult to vote, especially for younger people. As one report notes, “many young voters are new voters who need to register for the first time and who may be unfamiliar with the process. Young people …