Constitutional Law Commons^™

The Indirect Taxes, Conor Clarke, Ari Glogower

Scholarship@WashULaw

Article I of the Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts and Excises.” It is arguably Congress’s most important power. A government’s first task is to fund itself, and the absence of an enforceable funding mechanism under the Articles of Confederation was a primary reason for the Constitution in the first place. Yet scholarly and judicial attention has focused mostly on the term “taxes” (and specifically what constitutes a “direct tax” that must be apportioned) while largely overlooking the three terms that follow—the duties, imposts, and excises that are collectively known as the “indirect taxes.” 

While poorly …

Ai And Government Disinformation: Vaccine Disinformation, Caroline Mala Corbin

Fordham Law Review

No abstract provided.

Ai Suffrage For Human Flourishing, Simon Goldstein, Guha Krishnamurthi, Peter N. Salib

Fordham Law Review

Should Artificial Intelligence (AI) systems have the vote? One approach to this question is to explore AI systems’ moral characteristics, asking whether they possess the qualities that entitle humans to equal political standing and, consequently, suffrage. Those are important questions. But they are very hard ones, resting on highly contestable premises about ethics, AI, and humanity.

We instead take a functionalist approach: On the current trajectory, AIs will soon be highly agentic and capable, while remaining difficult to align with human objectives. If so, law will be an essential tool for shaping such systems’ behavior to favor positive-sum cooperation with …

Against Constitutional Rights For Frontier Ai Companies In Government Contracts, Thomas H. Lee

Fordham Law Review

No abstract provided.

Nonhuman Speakers And The Constitution, Helen Norton

Fordham Law Review

Long-standing free speech law sometimes does—and sometimes does not—turn on speakers’ human character. This Essay explores how these doctrinal threads might shape the constitutional doctrine applied to generative artificial intelligence’s (AI) speech outputs if we assume that a human speaker cannot be identified as the creator of those words and images—and that those words and images are nevertheless considered “speech” for First Amendment purposes.

For example, First Amendment doctrine sometimes requires proof of a speaker’s culpable mental state before that speaker can be held liable for what would otherwise be unprotected speech. These requirements seek to prevent the chilling of …

Clickwrap Accountability, Alicia Solow-Niederman

Fordham Law Review

Picture a public‑facing generative artificial intelligence (AI) chatbot on a government website that can answer questions about benefits eligibility. Systems like these expose a sociotechnical-legal divide: They route around the standard due process framework because there has been no formal government determination, yet they induce reliance from users, above and beyond past rounds of automated legal guidance. Moreover, if there is an error, current doctrine on government errors and equitable estoppel makes relief unlikely.

This Essay focuses on government deployment of public‑facing generative AI chatbots and critically assesses the front‑end power dynamics that determine who is filtered out of government …

Algorithmic Models And The Freedom Of Speech, Alexander Tsesis

Fordham Law Review

Intentionality and reason are intrinsic features of the human mind that large language models (LLMs) entirely lack. Although LLMs generate natural-language sentences through algorithmic processes, autonomously produced machine speech lacks the consciousness of human speakers. This intrinsic distinction between natural persons and artificial machines is consequential to whether LLM-generated outputs are covered by the First Amendment. Scholars who equate the constitutional value of human speech with algorithmic outputs tend to emphasize the informational value of those outputs to audiences while giving insufficient attention to the absence of machine consciousness. The conscious underpinnings of thought and their relation to constitutional protections …

Dicta’S Danger: The Lingering Nuisance Of Abel V. United States, Meg Penrose

University of Miami Law Review

This Article urges judges and lawyers to avoid relying on dicta when making legal claims. Dicta can cause confusion and generate incorrect legal conclusions. The most recent instance of dicta’s danger involves legal guidance on immigration arrests provided by the Department of Homeland Security’s General Counsel. Counsel erroneously relies on dicta from a 1960 Supreme Court case, Abel v. United States, in advising that law enforcement can legally enter a home armed solely with an administrative immigration arrest warrant. They cannot. The cited dicta precede binding Supreme Court precedent holding that the Fourth Amendment draws a firm line at …

Preserving Pickering, Deepa Das Acevedo

University of Miami Law Review

In the aftermath of Charlie Kirk’s assassination, the terminations of employees across dozens of industries and geopolitical environments shocked Americans into wondering whether they had workplace speech rights at all. Indeed, the promise of workplace speech freedom has been narrowing for decades—even for public employees, who enjoy more protections than private employees thanks to the Supreme Court’s landmark 1968 decision Pickering v. Board of Education.

Pickering held that the First Amendment prevents a public employer from summarily dismissing employees based on private speech regarding matters of public concern. Although Pickering’s protections have been narrowed and although they formally …

Cruel By Design: Reclaiming The Eighth Amendment From The Feasible-Alternative Requirement, Heath C. Newman

University of Miami Law Review

For more than two centuries, the Eighth Amendment’s prohibition on “cruel and unusual punishments” has stood as a safeguard against the barbarous and excessive exercise of state power. Rooted in the English Bill of Rights of 1689 and adopted by Framers who denounced torturous punishments, the Amendment was designed to protect the condemned from needless suffering. Yet, under the Supreme Court’s modern method-of-execution jurisprudence, that protection no longer turns on whether the state’s chosen method will inflict extreme pain, but on whether the prisoner can identify a feasible alternative way to die. The feasible-alternative requirement—developed in Baze v. Rees, Glossip …

Recent Case: Executive Power - The Supreme Court Relies On Historical Context To Protect The Federal Reserve's Independence In Trump V. Cook, Charles Britton

ConLawNOW

The Supreme Court in Trump v Cook carved out an exception for the Federal Reserve Bank to the unfettered right of the president to terminate administrative employees at will, a right it established the same day in Trump v. Slaughter. Rather than entirely eliminating the need for “cause,” the Court maintained the requirement in the bank context and defined it as something more than just a reason to dispose of a political adversary. The Court relied on historical and traditional support for insulating the Federal Reserve and pragmatism to protect against national economic turmoil. This Note explains how the …

Recent Case: Equal Protection - Transgender Discrimination In Women's Sports: West Virginia V B.P.J., Joey Martinez

ConLawNOW

This Recent Case Note analyzes the U.S. Supreme Court's decision in West Virginia v. B.P.J. (2026) in which the Court upheld state laws banning transgender women and girls from competing on women’s and girls’ sports teams. By holding that the state bans were justified by concerns with physical safety and fair competition, the Court rejected a claim that the bans violated the Equal Protection Clause and applied an arguably less demanding heightened scrutiny standard than its prior cases seemingly required. The Court deferred to the state legislatures on the contested questions of medical and sports science, applying a weakened “new …

Cumulative Reasonableness: A Doctrine Of The Combined Effect Of State Intrusions, Tonja Jacobi

Texas A&M Law Review

The Supreme Court has recognized that a single state action, such as forced surgery to retrieve a bullet as evidence, can be so intrusive as to be unreasonable, even when police have probable cause and a warrant. Yet, the Court permits significant intrusions into a person’s privacy and bodily integrity when the state acts in multiple steps. It permits police to, among other things: subject a person to a stop, even when that stop was driven by racial discrimination; use evidence found in a search of the person, even when the stop was illegal; arrest that person, even when the …

Incidental Jurisdiction, Mark Moller

Texas A&M Law Review

Federal courts have incidental, or implied, powers. On this, there is general agreement among originalist researchers. But there is also wide consensus that, whatever incidental powers Article III courts enjoy, these powers do not include incidental subject matter jurisdiction. Article III must confer federal subject matter jurisdiction expressly.

The conventional wisdom against incidental jurisdiction, though, is entirely unexamined. It is also wrong as an original matter. This Article presents new evidence that the express terms of Article III did not cash out the scope of federal subject matter jurisdiction. The outer boundaries of subject matter jurisdiction were defined, instead, by …

Judicial Independence As A Constitutional Construction, Keith E. Whittington

Texas A&M Law Review

An independent judiciary, in the American context, might best be understood as a constitutional construction. That is, it is a politically constructed set of practices, institutions, and norms that extend, but do not contradict, the legal requirements of the formal constitution. As such, judicial independence has come to occupy a fundamental status within our inherited constitutional order. But importantly, it is mutable. Our inherited practice of judicial independence has been built up and fought over across time, and within the contours of the written constitution, can be significantly reconstructed.

The example of judicial independence can serve as a useful illustration …

The Price Of Texas Values: Texas S.B. 22 And Content-Based Film Incentives, Juliana (Ani) Tookoian

Texas A&M Law Review

In 2025, the Texas Legislature enacted Senate Bill 22, committing $1.5 billion to expand the Texas Moving Image Industry Incentive Program and attract film and television production to the state. While the law aims to stimulate economic growth and job creation, it conditions eligibility for financial incentives on vague and subjective standards requiring productions to avoid portraying Texas negatively and to promote “Texas values.” This Comment argues that these content-based restrictions undermine the program’s economic objectives and raise significant First Amendment concerns. By granting state officials broad discretion to evaluate expressive content, the statute risks viewpoint discrimination and the chilling …

Multistate Litigation Networks, Elysa M. Dishman, Kristina Bishop

Texas A&M Law Review

State lawsuits challenging executive orders and agency regulations not only disrupt executive policymaking but also reshape constitutional structures. States sue the federal government in highly coordinated multistate coalitions led by state attorneys general. These state coalitions target federal agencies and officials in strategically selected courts seeking sweeping injunctions to block executive actions. Following the Supreme Court’s opinion curtailing universal injunctions for private litigants without class certification, states are uniquely poised to obtain broad injunctive relief against the federal government. This Article theorizes that multistate litigation involves a series of network relationships among state plaintiffs, federal defendants, and federal courts and …

Animus And Heightened Scrutiny: A Way Out Of The ‘Dead End’, Steve Sanders

Texas A&M Law Review

Laws or government actions that are grounded in animus rather than proper public purposes violate the Constitution’s guarantee of equal protection. This principle arises from four canonical cases decided by the Supreme Court between 1973 and 2013. These cases remain good law. Yet in the past decade the Roberts Court has given scant attention to the animus doctrine, and lower courts appear to be in a muddle about how to use it. As a result, the animus doctrine has reached what one prominent scholar calls a “dead end.” The animus cases are often described as exhibiting a more skeptical, more …

Reconstructing The Administrative State In The Shadow Of The Unitary Executive, William Thomas Worster

ConLawNOW

The Supreme Court’s unfolding embrace of the unitary executive theory has now substantially restricted Congress’s ability to insulate administrative agencies from presidential control. In Trump v. Slaughter, the Court invalidated the Federal Trade Commission’s statutory removal protections and, in turn, shifted its substantial regulatory, adjudicative, and enforcement powers from independence to far more enhanced presidential supervision. The decision thus exposes a fundamental problem in the constitutional organization of, and legislative assumptions supporting, the administrative state, that have evolved over a substantial part of the nation’s history. Modern agencies are classified as “executive,” firmly placed within Article II under the …

Birthright Citizenship Deserves Universal Injunctions, Jin Lim

University of Cincinnati Law Review

No abstract provided.

Punishing Homelessness: An Analysis Of Criminalizing Outdoor Sleeping, Maggie Hazelbaker

University of Cincinnati Law Review

No abstract provided.

Turning The Page Backward: Reconciling The Current Circuit Split On Whether The First Amendment Can Be Used To Challenge Modern Book Banning, Stella Brocker

University of Cincinnati Law Review

No abstract provided.

From Pickering To Participation: Rebalancing Speech And Equality In Government Employment, Madeline Pendleton, David Schultz

University of Cincinnati Law Review

Public employees occupy a uniquely precarious position in American constitutional law. They retain First Amendment rights as citizens while simultaneously operating within institutional hierarchies that may legitimately regulate their expression. Title VII and the Fourteenth Amendment’s Equal Protection Clause protect them from discrimination, yet the doctrinal frameworks designed to safeguard them often pull in opposite directions. This Article examines the resulting doctrinal confusion, arguing that the intersection of the Pickering/Garcetti framework governing public employee speech with Title VII’s hostile work environment doctrine and the Equal Protection Clause’s intent requirement has generated genuine uncertainty about the scope of constitutional protection—uncertainty that …

Buddy, Can You Spare A Claim?: Sparing Debtors' Claims From Dismissal Under The Doctrine Of Judicial Estoppel, Post-Keathley V. Buddy Ayers Construction, Inc., Abigail Bright Willie

ConLawNOW

In Keathley v. Buddy Ayers Construction, Inc., the Supreme Court considered the (decidedly) unglamorous issue of the proper standard for determining when judicial estoppel may be applied. While the case did not attract front page news, those in the bankruptcy law world knew the stakes, as evidenced by the amicus briefs filed by retired bankruptcy judges, bankruptcy scholars, and national bankruptcy organizations. They recognized that, if a merely inadvertent omission by a debtor in required disclosure documents could result in dismissal on judicial estoppel grounds of an otherwise prosecutable claim, there would be profound implications for the estate and …

Les Monarchies De La Péninsule Arabique : Conditions De La Survie, Ghassane Salamé

Proche-Orient, Études juridiques

No abstract provided.

Les Mécanismes De Protection De La Liberté De Conscience Dans Un État Multi‑Communautaire : L'Exemple Libanais, Pierre Gannagé

Proche-Orient, Études juridiques

No abstract provided.

La Protection Des Droits Fondamentaux Par Le Conseil D'État Du Liban, Hassan-Tabet Rifaat

Proche-Orient, Études juridiques

No abstract provided.

Le Point De Départ Du Délai Du Recours Pour Excès De Pouvoir À La Suite D'Une Déclaration D'Utilité Publique En Droit Libanais, Elias Haswany

Proche-Orient, Études juridiques

No abstract provided.

La Décentralisation Territoriale : Contribution À Un Débat Politique Et Administratif Fondamental, À Partir De L'Exemple Français, A.-H. Mesnard

Proche-Orient, Études juridiques

No abstract provided.

Zero-Sum Empathy: The Supreme Court's 2025 Term Decisions On Gender Identity, Susan Etta Keller

ConLawNOW

This past term, the Supreme Court majority continued to follow a pattern of rendering transgender individuals essentially invisible in the cases that concern their rights. In last year’s United States v. Skrmetti, the transgender youth affected by the ban on transgender care were largely absent from the majority opinion holding that such bans discriminated on the basis of neither sex nor transgender status. This term, the majority continued a similar trend, deciding two cases on the emergency docket that ignored the lived experience of transgender individuals while significantly affecting them, and one case on the merits, West Virginia v. …