Law Commons^™

Book Review: Half American, Half Amazing: A Review Of Half American By Matthew F. Delmont And An Exploration Of Executive Action During World War Ii And Its Impact On Black Soldiers, Ainslee Johnson-Brown

ConLawNOW

This essay reviews Matthew F. Delmont’s new book, Half American: The Epic Story of African Americans Fighting World War II at Home and Abroad (2022). The book enriches the ongoing scholarship related to critical race theory and the effects of executive action on the lived experience of Black Americans. Delmont presents a well-woven narrative of the experience of Black American soldiers during World War II. Pieced together from letters, court documents, and articles published during the war, this book sheds light on accounts previously buried beneath a shield of trauma, frustration, and disbelief.

Brief Of Amicus Curiae Francis Fukuyama In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555, Margaret E. O'Grady

Law Faculty Scholarship

The brief, in support of NetChoice, argues that the Texas and Florida “must carry” statutes violate the First Amendment in part because interoperability is a less restrictive means of achieving the goal of allowing diverse voices in the “town square” of the Internet.

Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson

Catholic University Journal of Law and Technology

No abstract provided.

National Security Or National Origin? The Implications Of Florida's Alien Land Law Under The Federal Fair Housing Act, Emily Behzadi Cardenas

South Carolina Law Review

No abstract provided.

Artificial Intelligence In Government: Risks And Challenges Of Algorithmic Governance In The Administrative State, Jose Vida Fernandez

Indiana Journal of Global Legal Studies

This article analyzes the legal implications of using artificial intelligence in government and how it is challenging the foundations of the administrative state. It begins by demonstrating that a new model of government is emerging, based on information and intelligence (i-Gov). To understand the nature and scope of this new i-Gov model, this article will explain what artificial intelligence really is and analyze the applications that are currently being carried out in the US and the EU. Next, it will review the regulatory framework that is emerging that regulates government use of artificial intelligence in both the US and the …

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …

Decolonizing Equal Sovereignty, Rosa Hayes

William & Mary Journal of Race, Gender, and Social Justice

In Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court announced that a tradition of equal sovereignty among the states prohibits unwarranted federal intrusions into state sovereignty and invoked this newly created doctrine to strike down Section 4(b) of the Voting Rights Act. Scholarly critiques in Shelby County’s immediate aftermath debated the constitutional validity of the Court’s equal sovereignty reasoning and warned of the dire threat the VRA’s effacement posed to voting rights—concerns that recent litigation have vindicated.

But other recent litigation suggests that, abstracted from its problematic and consequential origins, equal sovereignty may be deployed …

The New Insular Cases, Willie Santana

William & Mary Journal of Race, Gender, and Social Justice

The Insular Cases is a name given to a series of cases decided by the U.S. Supreme Court dealing with the status of the territories the United States acquired at the turn of the twentieth century. The Insular Cases rely on outmoded assumptions about the peoples who live in those islands, ninety-eight percent of whom belong to racial and ethnic minorities, and extend the extraconstitutional doctrine of territorial incorporation, a Plessy-style doctrine of separate governance for these territories that is different than the territories that preceded them. These cases, and the doctrine they announced, have been universally decried as …

An Essay About Privacy, Ronald Griffin

Journal Publications

Jessye Norman was an American opera singer. She died on October 1, 2019. On October 2, 2019, my wife got a grim diagnosis that put me in a stupor and reminded me, now more than ever, that my generation (that did so much good in the world) stands in line waiting for the Grim Reaper’s call. In a seventy-years (that have gone by too fast) I have watched my peers run from the realms of privacy, spaces where people implemented life plans uninterrupted by neighbours that were discernible, palpable, and real to everybody, to a realm where there is none. …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

Editorial

National Law School Journal

This editorial contextualises the articles in Issue 17(2), which treat matters of public discourse primarily through the lens of public law.

Removal Rehashed Legal History: Response, Andrea Scoseria Katz, Noah A. Rosenblum

Scholarship@WashULaw

We are grateful to the Harvard Law Review Forum for the chance to respond in these pages to The Executive Power of Removal. In this new piece, Professors Aditya Bamzai and Saikrishna Bangalore Prakash aim to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.

There are high hurdles to proving this argument, and this piece fails to scale them. There is little evidence for any of these separate contentions, whether we look to the Constitution’s text or the history …

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu

Scholarship@WashULaw

This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.

Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …

In Defense Of The Juggernaut: The Ethical And Constitutional Argument For Prosecutorial Discretion, David A. Lord

American University Journal of Gender, Social Policy & the Law

Within days of the Supreme Court’s decision overturning Roe v. Wade, progressive prosecutors throughout the country announced that if their jurisdictions enacted restrictions on abortion, they would not prosecute the individuals who had these procedures or the doctors who performed them. This is the latest example of situations, like drug crimes, illegal gun possession, and other offenses, where prosecutors have declined to enforce a state law as a matter of public policy. Critics of this broad use of prosecutorial discretion have argued that it violates the constitutional separation of powers.

This Article argues that prosecutorial discretion is well-founded in American …

Pro-Choice (Of Law): Extraterritorial Application Of State Law Using Abortion As A Case Study, Marnie Leonard

American University Journal of Gender, Social Policy & the Law

Madison Underwood was scheduled to receive a life-saving abortion at a clinic in Tennessee when her doctor told her the procedure had been canceled. The Supreme Court had overturned the constitutional right to abortion a few days prior. Although Underwood’s abortion was still legal in Tennessee, her doctor felt performing the procedure was too risky with the law changing so quickly.

Using State Law Before The Glaciers Thaw: Climate Torts After Bp V. Baltimore, Jillian Mayer

American University Journal of Gender, Social Policy & the Law

We are living in the beginning stages of Earth’s sixth mass extinction. Since the Industrial Revolution of the nineteenth century, the burning of fossil fuels has released huge quantities of carbon dioxide and other greenhouse gasses (“GHGs”) into the atmosphere. The increased concentration of GHGs causes the atmosphere to retain more heat. Consequently, ecosystems and weather patterns shift and change faster than most plants, animals, and human societies can adapt. Climate change threatens global peace, crashes economies, and creates humanitarian crises.

Third Annual Report To The Editor-In-Chief, Thomas E. Baker

FIU Law Review

This the third annual report of the results of the constitutional law haiku contest conducted in my section of Constitutional Law at the FIU College of Law.

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform …

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Methodological Gerrymandering, David Simson

Articles & Chapters

The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which …

Freeze-Frames And Blanket Bans: The Unconstitutionality Of Prisons’ Denial Of Gender Confirmation Surgery To Transgender Inmates, Aranda Stathers

Dickinson Law Review (2017-Present)

It is long established that the Eighth Amendment’s prohibition against imposing cruel and unusual punishments requires prisons to adequately address their inmates’ medical needs. Inmates identifying with the LGBTQ+ community are not exempt from this constitutional mandate. Trans inmates with gender dysphoria require specific treatment, including, but not limited to, gender confirmation surgery. While courts acknowledge that prisons owe a duty to provide some transition-related care, the extent of that duty remains contested. With no guidance from Congress or the Supreme Court, the constitutionality of prisons’ denial of gender confirmation surgery is in the hands of the circuit courts, which …

Dangerous And Unusual: How An Expanding National Firearms Act Will Spell Its Own Demise, Oliver Krawczyk

Dickinson Law Review (2017-Present)

The National Firearms Act of 1934 (NFA) is the strictest federal gun control law currently in effect. It criminalizes the mere possession and transfer of specifically enumerated categories of firearms deemed to be especially dangerous and unusual, such as machine guns and silencers. Commensurate with this viewpoint, the NFA imposes on violators harsh felony penalties, from lengthy prison sentences to six-figure fines. However, the NFA permits lawful civilian ownership of these firearms under a taxation and registration scheme administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In its 2008 District of Columbia v. Heller decision, the United …

Symposium: The Future Of Reproductive Rights: Perilous Private Enforcement Strategies: From Posses And Citizen's Arrest To Texas Heartbeat Statutes, Jennifer A. Brobst

ConLawNOW

The utility of state private enforcement statutes restricting abortion in Texas and other states is worthy of close scrutiny. Placing private enforcement in historical context aids in understanding when it may be a sustainable strategy. First, the strategy of involving the populace in the enforcement of legislative mandates has a long history in the United States. Self-help is a necessity where law enforcement is not equipped to prevent and respond to every call for assistance. Citizen’s arrest, posse comitatus, and mandatory reporting of misconduct by citizens, including professional misconduct, all involve private action for the common good in state and …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Constitutional Memories, Jack M. Balkin

William & Mary Bill of Rights Journal

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions …

The Legal Origins Of Catholic Conscientious Objection, Jeremy Kessler

William & Mary Bill of Rights Journal

This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s—most especially regulations concerning the provision of contraception and abortion.

Over …

Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel

William & Mary Bill of Rights Journal

This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …

The Collective Right Endures: Pre-Heller Precedent And Our Understanding Of The Modern Second Amendment, William Reach

William & Mary Bill of Rights Journal

Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.

After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms," discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these …

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

Symposium: The Future Of Reproductive Rights: Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

ConLawNOW

This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s …