Constitutional Law Commons^™

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Does The Woman Suffrage Amendment Protect The Voting Rights Of Men?, Steve Kolbert

Seattle University Law Review

This Article—part of the Seattle University Law Review’s symposium on the centennial of the ratification of the Woman Suffrage Amendment—examines that open possibility. Concluding that the Nineteenth Amendment does protect men’s voting rights, this Article explores why and how that protection empowers Congress to address felon disenfranchisement and military voting. This Article also examines the advantages of using Nineteenth Amendment enforcement legislation compared to legislation enacted under other constitutional provisions.

Part I discusses the unique barriers to voting faced by voters with criminal convictions (Section I.A) and voters in the armed forces (Section I.B). This Part also explains how existing …

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

American University Law Review

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of . . . commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, …

Illiberalism And Authoritarianism In The American States, James A. Gardner

American University Law Review

Federalism contemplates subnational variation, but in the United States, the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but also for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the United States. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently assume that subnational variations in …

John Marshall’S Constitution: Methodological Pluralism And Second-Order Ipse Dixit In Constitutional Adjudication, D.A. Jeremy Telman

Lewis & Clark Law Review

This Article provides a comprehensive treatment of the constitutional jurispru- dence of the Marshall Court (1801–1835), addressing its relationship to con- temporary originalism. Until recently, there seemed to be no need for such a study. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reac- tion against the perceived excesses of the Warren and Burger Courts. Original- ists did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made claims that constitutional adjudi- cation in the United States has always been originalist. This Article …

The 2019 Higgins Distinguished Visitor Lecture: The Subversive Side Of Textualism And Original Intent, Donald B. Ayer

Lewis & Clark Law Review

The Lorene Sails Higgins Charitable Trust provides the Lewis & Clark community access to leading legal scholars from around the world. Each year, the campus is graced with a visitor renowned in their field whose stay is funded by a grant from the trust. This lecture, given by the former Deputy Attorney General and Principal Deputy Solicitor General Donald B. Ayer during the course of his visit, discussed the changes in American legal thinking during his career.

The Contributions Of William Funk To American Constitutional Law Scholarship, William D. Araiza

Lewis & Clark Law Review

This Essay discusses the contributions of Professor William Funk to American constitutional law scholarship on the occasion of a festschrift held in his honor at Lewis & Clark Law School on April 5, 2019. Reviewing Professor Funk’s varied scholarship reveals his careful, attentive, and even-handed approach. The Essay concludes by comparing Professor Funk’s style of constitutional law scholarship to the approach to substantive due process embraced by Justice David Souter in his classic concurring opinion in Washington v. Glucksberg. Just like Justice Souter’s analysis in Glucksberg, Professor Funk’s scholarship seeks justification for rules in the results they generate, rejects arid …

Individual Preferences In Policy Analysis: A Normative Framework, Gabriel Weil

Scholarly Works

Measures of individual preferences are a key input in cost-benefit analysis. However, behavioral science has raised questions about the rationality of these preferences. The Nudge thesis relies on that scientific research to prescribe interventions to influence individual choices. However, the more modest step of limiting reliance on these preferences in evaluating non-paternalistic government policies has not been taken up. We lack a consistent theory of when public policy should defer to these preferences, with legal and policy advocates adopting ad hoc result-oriented approaches. I argue that policymakers should be prepared to override individual preferences in cases where their only plausible …

Conceptualizing Appealability: Resisting The Supreme Court's Categorical Imperative, Richard L. Heppner Jr.

Law Faculty Publications

This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only "classical categories" based on logical definitions, but also "conceptual categories" based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process-first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step.

This paper makes two contributions to the study of federal appealability. …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

The “Step-Child Of Scholarly Investigation”: Preliminary Observations About The Origins Of Academic Jewish Law Scholarship, David Hollander

Touro Law Review

No abstract provided.

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur

Journal of Race, Gender, and Ethnicity

No abstract provided.

As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Methodology Of Social Adaptation Following The Liberation Of A Wrongful Conviction, Ashantwa Jackman

Journal of Race, Gender, and Ethnicity

No abstract provided.

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

The Ratchet Wreck: Equality’S Leveling Down Problem, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Constitutional equality law has a two-way ratchet problem. When someone demonstrates that a government policy treats her unequally, the injury can be remedied by improving things for the claimant, but it can also be remedied by leaving the claimant’s status unchanged while making things worse for the people advantaged by the policy. If a court chooses the latter option, it diminishes the welfare of some people while arguably not improving welfare of anyone else. Why is that a good idea?

Courts have often attempted to avoid hard questions like these by leveling up – that is by allowing advantaged persons …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Coronavirus, Civil Libertities, And The Courts: The Case Against Suspending Judicial Review, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Introduction: For obvious reasons, local and state orders designed to help “flatten the curve” of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints …

Hernandez, Bivens, And The Supreme Court's Expanding Theory Of Judicial Abdication, William J. Aceves

Faculty Scholarship

Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican child, was playing with his friends in Mexico when he was shot in the face by a U.S. Border Patrol Agent standing in the United States. Sergio died on the concrete ground where he fell.

In Hernandez v. Mesa, Sergio’s family brought a federal lawsuit seeking to hold Agent Jesus Mesa, Jr. responsible for the death of their son. They alleged Agent Mesa had violated Sergio’s constitutional rights and based their claim on the Bivens doctrine. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court established a …

Do Abolitionism And Constitutionalism Mix?, Aya Gruber

Publications

No abstract provided.

Experiments With Suppression: The Evolution Of Repressive Legality In Britain In The Revolutionary Period, Christopher M. Roberts

Loyola of Los Angeles International and Comparative Law Review

This article is concerned with the structure of repressive governance, and how it has evolved historically. It examines this theme through an exploration of the manner which repressive laws and institutions evolved in Britain over the course of the late eighteenth century. In particular, it reviews the various measures that British authorities utilized and relied upon in order to confront a growing wave of calls for social and political reforms. These included a policy of aggressive prosecutions of dissidents; the creation of new institutions such as the Home Office designed to enhance the powers of the central authorities; extralegal measures …

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …