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Articles 61 - 81 of 81
Full-Text Articles in Law
Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller
Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller
Faculty Scholarship
Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …
A Call For Transparency In Sports To The Government Of Puerto Rico, Karla V. Aponte
A Call For Transparency In Sports To The Government Of Puerto Rico, Karla V. Aponte
St. Thomas Law Review
Much like a state, Puerto Rico is self-governed, but cannot interfere with federal law. However, sports federations in Puerto Rico are not governed by the existing applicable federal law. Sports federations are avoiding most of the strict regulations imposed by federal acts, mainly because Puerto Rico has its own Olympic identity, and is recognized by the International Olympic Committee as a separate country. As a result, the language on the federal acts has been interpreted to only apply to those organizations representing the United States. Because of this, federations avoid strict auditing procedures, and other regulations, which consequently have deterred …
The Constitutional Issues Of Publishing Mugshots In The Age Of Screenshots And Digital Media, Ryan J. Mcelhose
The Constitutional Issues Of Publishing Mugshots In The Age Of Screenshots And Digital Media, Ryan J. Mcelhose
St. Thomas Law Review
This paper takes the position that American people’s Due Process rights are violated when their mugshots are digitally disseminated prior to a conviction. The press’s First Amendment rights are not violated by not having access to pre-conviction booking photos because the press can report on other publicly accessible information. The same conclusion can be made relating to private citizens and private companies who assert that their Freedom of Speech rights are violated by not having access to obtain, publish, and disseminate pre-conviction mugshots. Existing scholarship has addressed the issue of publishing mugshots with privacy arguments related to the Freedom of …
The Dilemma Of Liberal Pluralism, Abner S. Greene
The Dilemma Of Liberal Pluralism, Abner S. Greene
Faculty Scholarship
Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …
A Flawed Case Against Black Self-Defense, Nicholas J. Johnson
A Flawed Case Against Black Self-Defense, Nicholas J. Johnson
Faculty Scholarship
No abstract provided.
Constitutional Gun Litigation Beyond The Second Amendment, Joseph Blocher, Noah Levine
Constitutional Gun Litigation Beyond The Second Amendment, Joseph Blocher, Noah Levine
Faculty Scholarship
No abstract provided.
“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher
“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher
Faculty Scholarship
A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …
The Public Right To Education, Matthew P. Shaw
The Public Right To Education, Matthew P. Shaw
Vanderbilt Law School Faculty Publications
Public education is "the most important function of state and local government" and yet not a "fundamental right or liberty." This Article engages one of constitutional law's most intractable problems by introducing "the public right to education" as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful …
The Runaway Presidential Power Over Diplomacy, Jean Galbraith
The Runaway Presidential Power Over Diplomacy, Jean Galbraith
All Faculty Scholarship
The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive …
State Rejection Of Federal Law, Thomas B. Bennett
State Rejection Of Federal Law, Thomas B. Bennett
Faculty Publications
Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …
Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings
Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings
Journal Articles
Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …
A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind
A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind
Journal Articles
The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …
Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.
Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.
Law Faculty Publications
Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.
In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …
A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton
A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton
Publications
This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …
An Expanded Version Of Oira Can Ensure Democratic Accountability In The Administrative State, Richard J. Pierce Jr
An Expanded Version Of Oira Can Ensure Democratic Accountability In The Administrative State, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In this contribution to a symposium, Professor Pierce argues that the most promising way of ensuring democratic accountability in the administrative state is to combine an expanded version of OIRA with complementary doctrines.
Why Judges Can't Save Democracy, Robert L. Tsai
Why Judges Can't Save Democracy, Robert L. Tsai
Faculty Scholarship
In The Specter of Dictatorship,1 David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …
How Should The Court Respond To The Combination Of Political Polarity, Legislative Impotence, And Executive Branch Overreach?, Richard J. Pierce Jr
How Should The Court Respond To The Combination Of Political Polarity, Legislative Impotence, And Executive Branch Overreach?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In this essay, Professor Pierce discusses two related problems that the Supreme Court must address—the large increase in nationwide preliminary injunctions issued by district judges to prohibit the executive branch from implementing major federal actions and the large increase in the number of cases in which the Supreme Court either stays or refuses to stay preliminary injunctions without providing an adequate explanation for its action. He begins by describing the sources of the two problems and the many ways in which they threaten our system of justice. He then urges the Court to issue an opinion in which it provides …
Combatting Wage Theft In Global Supply Chains: A Proposal For Transnational Wage Lien Laws, Nabila N. Khan
Combatting Wage Theft In Global Supply Chains: A Proposal For Transnational Wage Lien Laws, Nabila N. Khan
LL.M. Essays & Theses
When the world went into lockdown due to the COVID-19 pandemic, major fashion brands attempted to protect their profits by refusing to pay overseas suppliers for over $16 billion USD of goods between April and June 2020. These decisions had a devastating impact on garment workers who toil at the bottom of the supply chain; thousands of garment workers and their families faced wage theft, dealing with months of unpaid wages, benefits and/or severance pay. In the absence of a regulatory framework to hold corporations responsible, workers, unions, and NGOs resorted to naming and shaming brands into taking action. However, …
Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass
Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass
Faculty Scholarship
The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.
Our principal focus, however, is on the …
Four Privacy Stories And Two Hard Cases, Jessica Silbey
Four Privacy Stories And Two Hard Cases, Jessica Silbey
Faculty Scholarship
In the context of reviewing Scott Skinner's book "Privacy at the Margins" (Cambridge University Press, 2021), this article discusses four "privacy stories" (justifications for and explanation of the application of privacy law) that need substantiation and reinterpretation for the 21st century and for what I call "fourth generation" privacy law and scholarship. The article then considers these stories (and Skinner's analysis of them) in light of two "hard" cases, one he discusses in his book and one recently decided by the Massachusetts Supreme Judicial Court, both concerning privacy in taking and dissemination of photographs.
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Faculty Scholarship
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …