Constitutional Law Commons^™

It's The Night Of The Living Deepfakes: The Threat Of Deepfakes On The Film Industry, Neki Shero

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Eighteen Generations Of Uncertainty: Arkansas’S New Perpetuity Law Is “Contrary To The Genius Of A Republic”, Steven H. Jacobs

Arkansas Law Review

A drunk driver crashes his Lamborghini into a family sedan, killing the mother and brother and putting the sister in the hospital. The family gets a multi-million-dollar judgement, but they cannot collect––the wealthy drunk driver has no money of his own. All of his money and assets are protected from suit in a spendthrift dynasty trust left behind by his great-great-grandfather. He and his family are members of a new aristocratic class created by the downfall of the rule against perpetuities. The drunk driver first turned to alcohol after his inheritance requirements coerced him into leaving his life behind to …

Property Without Shelter: How Anti-Public-Camping Laws Violate The Substantive Due Process Rights Of The Homeless, Aaron Rissman

University of Miami Law Review

In City of Grants Pass v. Johnson, the Supreme Court held that enforcing anti-public-camping ordinances against homeless individuals does not violate the Eighth Amendment’s prohibition on status crimes. While the Court foreclosed the Eighth Amendment as a vehicle for challenging such laws, it suggested that other constitutional protections may remain available. This Note takes up the Court’s invitation and argues that many anti-public-camping laws violate the Fourteenth Amendment’s substantive due process guarantees.

Drawing on historical sources from common-law England through the Founding and Reconstruction eras, this Note demonstrates that the right to acquire, own, control, use, enjoy, and protect …

A Right Without A Remedy: The Court’S Failure To Quantify The Agua Caliente’S Federal Reserved Water Rights, Lauren Block

Washington Law Review

The Agua Caliente Band of Cahuilla Indians has inhabited the Coachella Valley region since time immemorial. Through a series of 1870s executive orders, the United States government reserved land for the Tribe to establish a permanent home within the bounds of their ancestral homeland. Underlying this permanent home is the Coachella Valley aquifer, a groundwater source that has been in a continuous state of overdraft for decades. Against the backdrop of climate change, water scarcity, and other concerns, the Tribe sued Coachella Valley’s water management agencies in 2013, alleging the Tribe owned a portion of the water in the aquifer …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Table Of Contents

Seattle University Law Review

Table of Contents

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

The Field Of International Business Transactions Law, Kathleen Claussen

Seattle University Law Review

This Article studies the evolution of the scholarly subfield referred to as the law of “international business transactions” (IBT). It reviews data on academic articles, courses, textbooks and other signifiers of the growth of this research area. Beginning around 1960, scholars began to use the term “international business transactions” and by the 1980s, several law schools were offering a course by that title. A handful of dedicated textbooks soon followed. These data reflect a gradual increase in research on the topic of IBT, particularly in the United States, but also considerable diversity of subject matters covered by those works. The …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Navigating Compliance In A Geopolitical Era: The Case Of Chinese Multinationals In The United States, Ji Li

Seattle University Law Review

This Article examines how Chinese multinational companies (MNCs) approach compliance in the United States amid deepening geo-political rivalry and intensified regulatory scrutiny. Drawing on original survey data, this Article maps variations in compliance structures, staffing, and governance mechanisms across Chinese firms and identifies key determinants such as industry-specific regulatory intensity, listing status, and organizational imprinting from headquarters. The analysis employs a dual institutional framework to explain how compliance systems emerge from the interplay between host-state regulatory demands and home-state institutional legacies, producing hybrid structures that blend local adaptation with headquarters-driven replication. Findings reveal that while certain compliance features—such as committee …

The Exactions Illusion: Sheetz’S Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Faculty Scholarship

In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct.  It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s …

Feudal Is Fine Because Property Is Sovereignty: Rational Basis Equal Protection And The New Noncitizen Land Laws, Jill M. Fraley

Scholarly Articles

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty rather than an ordinary site of economic regulation.

Against prevailing accounts, this Article shows that the Court’s jurisprudence has never subjected all citizenship-based classifications to heightened scrutiny. Instead, the Court has consistently …

The Dead Hand And Frozen Lives: Embryonic Personhood And The Disruption Of Property Interests, Emma Miloglav

Fordham Law Review

Advances in assisted reproductive technology and the expansion of fetal personhood laws are colliding with a body of property doctrine built on assumptions about reproduction that no longer hold. In LePage v. Center for Reproductive Medicine, P.C., the Supreme Court of Alabama held that extrauterine embryos—fertilized and frozen in a laboratory—are “children” under the state’s Wrongful Death of a Minor Act. LePage represents a dramatic extension of fetal personhood.

This shift carries profound consequences for trusts and estates. If frozen embryos are treated as legal persons, they may qualify as heirs under intestacy statutes and as beneficiaries of wills, …

Constitutional Structures In Private Law And The Example Of Waste Law, Jill M. Fraley

Scholarly Articles

This Article proposes three criteria for when a private law mechanism performs a structural constitutional function: when it constrains present authority in the name of future stability, when it disperses enforcement to avoid centralized authority, and when it has structural entrenchment to avoid ordinary displacement. While many private law doctrines contain constitutional resonances or echo rights, the core of constitutional law is the power structure—a precondition for the protection of those rights. Constitutional structures have three key components: self-binding through time, separation and diffusion of power, and entrenchment beyond ordinary politics. For a private law doctrine to do more than …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

Making A Martyr: The Inequity Of The Necessity Doctrine’S Application To The Fifth Amendment’S Takings Clause, Max Abrams

Villanova Law Review (1956 - )

No abstract provided.

Greenhat’S Greenlight To The Cftc: The Case For A Jurisdictional Shift Of Financial Transmission Rights From The Federal Energy Regulatory Commission To The Commodity Futures Trading Commission, Timothy K. Shaw Ii

DePaul Business & Commercial Law Journal

Regional Transmission Organizations and Independent System Operators are a relatively new platform to buy and sell wholesale electricity and transmission service of that electricity. These groundbreaking organizations have been around since 1996 after the Federal Energy Regulatory Commission (“FERC”) issued Order 888. FERC regulates the physical electricity wholesale sale and transmission service market managed by a Regional Transmission Organization (“RTO”) or Independent System Operator (“ISO”),through its Federal Power Act mandate. Many RTOs and ISOs offer a product called a Financial Transmission Right (“FTR”). Traditionally, FTRs assist the holder by providing price certainty, or a hedge, in the capacity market. This …

Choosing The Best Entity For Investments Trading After Understanding The Tax Limitations And Restrictions, Ray A. Knight, Joseph Lakatos

DePaul Business & Commercial Law Journal

The trading of various securities is subject to market rules. However, when securities trading is completed within a business entity, the entity is subject to tax limitations and restrictions. The tax benefits cannot be the dominant purpose for the entity structure; economic substance including profit motive and business purpose for each transaction must be able to be shown.

The trading of investment securities must be housed in the right entity to gain the best economic results as well as to minimize the tax burden. The entity selection process must first consider the characteristics and nature of the securities (e.g., currencies, …

Volume 23 - Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

The Times They May Be A–Changin’: A Look Into Cuba’S Future For Property Rights And Restitution Through 3 Lenses, Patrick M. Denny

University of Miami Inter-American Law Review

After the 1959 Cuban Revolution, Fidel Castro took power and instituted a new regime that formed itself into a communist stronghold of the global south. With this new government came curtailment of private property rights, effectuated in government confiscation and limitation in private ownership opportunity. As many Cubans and foreign persons/entities had their residential, rural/agricultural, and commercial/industrial property confiscated, demands for restitution over the years has grown, particularly through US–led efforts. As Cuba has begun to soften to the idea of private property, as evidenced in its new 2019 Constitution, this Note seeks to analyze how property rights in Cuba …

Divine Detachment: Beachy V. Assemblies Of God And A New Interpretation Of The Ecclesiastical Abstention Doctrine, Juarez Mcleod Johnson

MC Law Review

In the landmark case of Beachy v. Mississippi District Council for Assemblies of God, the Mississippi Supreme Court redefined its interpretation of the ecclesiastical abstention doctrine—marking a pivotal shift in church-state jurisprudence. Traditionally, this doctrine instructed courts to defer to the highest internal authority of a church when deciding disputes within hierarchical religious organizations. However, the court’s decision in Beachy significantly departed from this principle by designating the local pastor and congregation as the supreme authority over local church affairs, even within a hierarchical structure.

This Casenote explores the profound implications of the Supreme Court’s ruling, focusing on its …

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Torts And Pesticide Drift: Amending Right-To-Farm Acts In The Wake Of Widespread Dicamba Drift By Nicholas Brown** And Matt Roessing*

Journal of Legal Studies in Business

When crops die in a field prior to harvest, a farmer loses a portion of his salary for that year. When the cause of the crop loss is natural, farmers can usually seek compensation through crop insurance and government commodity support programs. When the crops were lost as a result of pesticide drift, these forms of compensation are not usually available to farmers.1 In order to make up for their losses, farmers can seek damages through judicial redress. For many decades, various state and federal laws have combined to complicate and at times prevent farmers adversely affected by pesticide drift …