Constitutional Law Commons^™

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.

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.

Fetal Equality, Shaakirrah R. Sanders

Washington and Lee Law Review Online

I join Carliss Chatman’s call to fully consider the equal protection implications of the conception theory and raise an additional right to which a fetus may be entitled as a matter of equal protection: health care, which implicates state laws that provide civil and criminal exemptions to parents who choose religious healing instead of medical care for their children and minor dependents. The evidence of harm to children from religious healing is well documented. Yet, currently, approximately forty-three U.S. states and the District of Columbia have some type of exemption to protect religious healing parents in civil and criminal cases. …

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …

The Lgbtq Equality Gap And Federalism, Nancy J. Knauer

American University Law Review

LGBTQ people in the United States live with an Equality Gap that seems to grow wider with each legislative session. The majority of states do not have nondiscrimination protections in place for LGBTQ people. In the absence of blanket federal non-discrimination protections, a same-sex couple can be denied service by bakers, catering halls, and photographers while trying to exercise their constitutionally protected right to marry. A transgender person can be denied access to a public bathroom that matches their gender identity. A federally funded adoption agency can refuse to work with LGBTQ persons who wish to adopt. In addition, many …

United States V. Touset, Katelyn James

NYLS Law Review

No abstract provided.

Identity Federalism In Europe And The United States, Vlad Perju

Vanderbilt Journal of Transnational Law

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives, too, have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional …

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 …

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 …

The Shrinking Constitution Of Settlement, David E. Pozen

Faculty Scholarship

Professor Sanford Levinson has famously distinguished between the "Constitution of Settlement" and the "Constitution of Conversation." The former comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation. The latter comprises those aspects that are subject to ongoing litigation and debate. Although Americans tend to fixate on the Constitution of Conversation, Levinson argues that much of what ails our republic is attributable, at least in part, to the grossly undemocratic and "decidedly nonadaptive" Constitution of Settlement.

This Article, prepared for a symposium on Levinson's coauthored book Democracy and Dysfunction, explains that the Constitution of …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

Model Pembentukan Peraturan Daerah Yang Ideal Dalam Penyelenggaraan Otonomi Daerah, Marten Bunga

Jurnal Hukum & Pembangunan

This study aims to analyze the model formation of regional regulations in the implementation of regional autonomy. This research method used is included in the type of normative legal research that uses secondary data obtained from library materials in the form of primary legal material. The results of the study indicate that regional regulations in the implementation of regional autonomy are a policy instrument in the implementation of the regional government. Establishment of regional regulations that are in accordance with the interests of the community must implement the principles of regional autonomy and the content of regional regulations must not …

The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger

Brooklyn Journal of International Law

Germany has the strictest genetic engineering laws in the world and bans virtually all kinds of embryonic gene editing. Since the invention of CRISPR, however, embryonic gene editing is more precise, and the possibilities of curing genetic diseases are more real than ever. This Note will argue for the right to embryonic gene editing through an analysis of German constitutional privacy and right to life jurisprudence. Ultimately, this Note argues for a right to procreate under German law that is backed by the state’s affirmative duty to encourage and protect life. When the technology is available, German Law should not …

Extraordinary And Compelling: Madison V. Alabama And The Issue Of Prison Reform For Elderly Prisoners, Jennifer Leto

University of Miami Race & Social Justice Law Review

No abstract provided.

From Decarceration To E-Carceration, Chaz Arnett

Cardozo Law Review

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to theircommunities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of …

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Student Scholarship

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen J. Pita Loor

Seattle University Law Review

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives—and their emergency management law enforcement actors—when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I choose to focus on …

The Need For A Wealth Inequality Amendment, Stuart Ford

West Virginia Law Review

No abstract provided.

Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Maryland Law Review

No abstract provided.

Drying Up The Slippery Slope: A New Approach To The Second Amendment, Stephanie Cooper Blum

Buffalo Law Review

Few issues are as divisive as guns in American society. In 2017, gun deaths in the United States reached their highest level in nearly forty years. The status quo is untenable as many gun rights groups feel that gun regulations are just a first step in a slippery slope of undermining the Second Amendment’s right to bear arms for self-defense. Conversely, many gun violence prevention activists insist that reasonable regulations concerning public safety can co-exist with the right to bear arms. This quagmire will never abate because on many levels both sides are right. For over 200 years, the courts …