Constitutional Law Commons^™

Due Process Court Of Appeals

Touro Law Review

No abstract provided.

Institutional Death: Effects Of Carceral State And Education Institution On Black Men, Shontoria D. Pratt

African American Studies - All Scholarship

African American men have been dying at an alarming rate for many years. Issues such as violence, prison, education success rates, and health related issues, as well as institutional injustice, have been significant factors in these physical and mental deaths of African American men. The purpose of this research is to investigate the correlation, if any, between the quality of life of African American men in urban cities and their level of Afrocentric knowledge. To what extent does the exposure of Afrocentric knowledge affect the views or help African American men avoid these deaths? This research will present preliminary ideas …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Weed Whacking Through The Tenth Amendment: Navigating A Trump Administration Threat To Withhold Funding From Marijuana-Friendly States, Arlen Gharibian

Loyola of Los Angeles Law Review

The Trump administration has taken a firm stance against marijuana legalization at the state level. While an official federal policy is still pending, this Article focuses on whether the Trump administration’s threats to preventCalifornia from pursuing its duly enacted marijuana legalization law violates the Tenth Amendment. This Article then addresses how the federal government could achieve its goal while remaining within the bounds of the Constitution.

A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen

Dickinson Law Review (2017-Present)

President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …

Opening Remarks: The Federalism Dimension Of Constitutional Property, Stewart E. Sterk

Articles

No abstract provided.

Murphy V. Ncaa: The Supreme Court's Latest Advance In Chemerinsky's "Federalism Revolution", Jonathan O. Ballard Jr.

Loyola of Los Angeles Law Review

No abstract provided.

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends …

Weed Wars: Winning The Fight Against Marijuana Spillover From Neighboring States, Jessica Berch

Nevada Law Journal

No abstract provided.

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly

Maine Law Review

The Commerce Clause of the United States Constitution provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Interpreting this explicit grant of power to Congress, the Supreme Court has long recognized the existence of an implied limitation on the power of a state to legislate in areas of interstate commerce when Congress has remained silent. Under what is referred to as the negative or “dormant” Commerce Clause, the federal courts have thus scrutinized state legislation for well over one hundred years. In the past several …

New Hampshire Motor Transport Association V. Rowe: Federal Preemption Of Maine's Attempt To Regulate Internet Sales Of Tobacco To Minors, Nathaniel D. Bryans

Maine Law Review

In New Hampshire Motor Transport Ass'n v. Rowe, trade associations sought a declaratory judgment that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts a Maine law enacted to facilitate collection of state taxes and restrict the delivery of tobacco products to minors (the Tobacco Delivery Law). The district court granted the plaintiffs' second motion for summary judgment in part, finding that a single provision of little independent consequence escaped preemption, and enjoined enforcement of the preempted provisions. The state appealed to the United States Court of Appeals for the First Circuit, which held that most of Maine's Tobacco …

“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres

Fordham Law Review

The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, class, gender, or disability. Given this multidimensionality, the city, as the place where residents carry out the tasks of their daily lives, is a critical space for promoting elements of citizenship. This Note argues that recent city municipal identification-card programs have created a new form of …

Hyatt V. Franchise Tax Board Of California: Perils Of Undue Disputing Zeal And Undue Immunity For Government-Inflicted Injury, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Amend The Communications Decency Act To Protect Victims Of Sexual Exploitation, Samantha Vardaman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

The Missouri Student Transfer Program, Howard E. Fields Iii

Dissertations

In 1993, the state of Missouri passed the Outstanding Schools Act. This law was created as a means to ensure that “all children will have quality educational opportunities, regardless of where in Missouri they live.” Section 167.131 of this law states that an unaccredited district must pay the tuition and transportation cost for students who attend an accredited school in the same or adjoining district. This portion of the law became known as the Student Transfer Program.

The Riverview Gardens School District (RGSD) was one of three unaccredited school districts in the state of Missouri in 2013. With close to …

The Return Of The Unprovided-For Case, Michael S. Green

Faculty Publications

No abstract provided.

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

Extraterritorial Constitutionalism: A Rule Proposed, 50 J. Marshall L. Rev. 787 (2017), Joseph Alfe

UIC Law Review

Does the Fourth Amendment apply in cases of cross-border shootings of foreign nationals, when those shots were fired by United States Border Patrol agents from American soil, striking a victim in Mexico? In oral argument, Petitioner failed to heed the trail of breadcrumbs strewn at his feet by inquisitive Supreme Court Justices. A workable, yet narrow rule that would plug the critically important gap in application of the United States Constitution to remedy such cross-border atrocities, was not articulated. I propose one here. The world’s busiest border is that which is shared between the United States and Mexico. Our countries …

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

What Is Foreign Relations Law?, Curtis A. Bradley

Faculty Scholarship

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

Right, Title And Interest In The Territorial Sea: Federal And State Claims In The United States, Stephen M. Kiser, Dan A. Aldridge Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

Journal Articles

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It …

The Place Of Policy In International Law, Oscar Schachter

Georgia Journal of International & Comparative Law

No abstract provided.

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Ninth Circuit's Decision In Von Saher V. Norton Simon Museum Of Art At Pasadena: The Invocation Of The Act Of State Doctrine And Its Implications For Future Nazi-Stolen Art Claims, Erica Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.