Constitutional Law Commons^™

Climate Balkanization: Dormant Commerce And The Limits Of State Energy Policy, Jonathan H. Adler

Faculty Publications

Through the imposition of mandates on what sorts of energy may be produced or sold, state regulatory efforts have imposed burdens on interstate energy markets. In some cases, these burdens are explicit, as when states have privileged in-state energy sources at the expense of out-of-state producers or sellers. In other cases, these burdens are the inevitable consequence of state efforts to reduce the environmental impacts of energy consumed within the state. Such restrictions, and their associated burdens on interstate commerce, raise serious constitutional questions. Under the so-called "Dormant Commerce Clause," state regulations that discriminate against out-of-state actors are presumptively unconstitutional, …

The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt

Michigan Law Review

For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …

Must Treaty Violations Be Remedied?: A Critique Of Sanchez-Llamas V. Oregon, John Quigley

Georgia Journal of International & Comparative Law

No abstract provided.

Official, National, Common Or Unifying: Do Words Giving Legal Status To Language Diminish Linguistic Human Rights?, Paul C. Hale

Georgia Journal of International & Comparative Law

No abstract provided.

The Right To Travel: Breaking Down The Thousand Petty Fortresses Of State Self-Deportation Laws, R. Linus Chan

Pace Law Review

Part I of this Article discusses the limitation of the pre-emption doctrine on state self-deportation laws. Part II discusses a short history of the Supreme Court’s application of the right to travel. Part III explains why the lack of federal authorization or immigrant status does not exclude people from the right to travel’s protection. Part IV discusses how the right to travel relates to citizenship and how the undocumented may exercise what has been described as a privilege or immunity of citizenship. Finally, Part V examines how the current state-based “self-deportation” immigration laws violate the right to travel.

Rethinking The Nevada Campus Protection Act: Future Challenges & Reaching A Legislative Compromise, Brian Vasek

Nevada Law Journal

No abstract provided.

Corrosion Of The Confrontation Clause In North Carolina: A Comparison Of State V. Brewington And State V. Ortiz-Zape With State V. Craven, Michelle M. Weiner

North Carolina Central Law Review

No abstract provided.

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

North Carolina's Declaration Of Rights: Fertile Ground In A Federal Climate, Grant E. Buckner

North Carolina Central Law Review

No abstract provided.

The Big Chill? - The Likely Impact Of Koontz On The Local Governments/Developer Relationship, Julie A. Tappendorf, Matthew T. Dicanni

Touro Law Review

This article will explore the doctrine of unconstitutional conditions, showing how it has evolved in the context of land use and come to be the logical underpinning of controversial Supreme Court decisions regarding exactions. Part I will explain the doctrine of unconstitutional conditions, providing a brief overview of its development over the course of the past century. Part II will then discuss how this doctrine has come to be the logical foundation on which the Supreme Court’s exactions jurisprudence rests. Part III will discuss the Koontz decision and its impact on the doctrine of unconstitutional conditions. In Part IV, we …

Nevada Public Policy And Higher Education: The Roles Of The Legislature And The Board Of Regents Under The Nevada Constitution, Thomas B. Mcaffee, Justin James Mcaffee

Nevada Law Journal

No abstract provided.

Cambria's Water War: Legal Analysis Of The Building Moratorium And Its Implications For Land Owners, Jayson Parsons

Political Science

With each passing year, Cambria, California's building moratorium becomes increasingly controversial. The moratorium, enacted by the local community services district in 1986 due to a series of water shortages, has resulted in nearly 43% of all property owners under the district's purview to be denied the ability to develop their parcels. This paper seeks to examine the constitutionality of this moratorium using relevant regulatory takings jurisprudence.

Reviewing United States Supreme Court precedent, including Pennsylvania Coal v. Mahon (1922), Penn Central Transport v. New York City (1978), Lucas v. South Carolina Coastal Council (1992), and Tahoe-Sierra Preservation Council …

Looking For Mr. (Or Ms.) Rights, Jack M. Beermann

Shorter Faculty Works

I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a …

Supreme Court Of New York Appellate Division, First Department - Street Vendor Project V. City Of New York, Sarah Marx

Touro Law Review

No abstract provided.

Treading Water: Can Municipal Efforts To Condemn Underwater Mortgages Prevail?, Michael S. Moskowitz

Pepperdine Law Review

No abstract provided.

Preserving Home Rule: The Text, Purpose, And Political Theory Of California’S Municipal Affairs Clause, Brett A. Stroud

Pepperdine Law Review

No abstract provided.

Carbon Outlasts The Law: States Walk The Constitutional Line, Steven Ferrey

Suffolk University Law School Faculty Works

State carbon policies to control climate warming and our energy future are under legal attack. A successful barrage of litigation now invokes the dormant Commerce Clause and the Federal Power Act as interpreted through the Filed Rate Doctrine, as well as the Supremacy Clause of the U.S. Constitution, to challenge the legal validity and sustainability of these state carbon-based laws. California and other states have survived these legal challenges sparingly, and then often only by prevailing with procedural defenses that dismiss the case before a decision on the legal merits of their state energy regulation. This Article examines and analyzes …

Taking States (And Metaphysics) Seriously, Sanford Levinson

Michigan Law Review

Sotirios A. Barber has written many incisive and important books, in addition to coediting an especially interesting casebook on constitutional law and interpretation. He is also a political theorist. An important part of his overall approach to constitutional theory is his philosophical commitment to “moral realism.” He believes in the metaphysical reality of moral and political truths, the most important of which, for any constitutional theorist, involve the meanings of justice and the common good. He not only believes in the ontological reality of such truths — that is, that these truths are more than mere human conventions or social …

The Double Helix Of Supremacy And Commerce Clause Constitutional Restraints Encircling The New Energy Frontier, Steven Ferrey

Suffolk University Law School Faculty Works

This article unwinds the legal double helix to examine the constitutional jurisdictional assault on American energy infrastructure and law. We examine pivotal elements of the Commerce Clause, the Supremacy Clause, and procedural aspects of ongoing challenges on energy and climate change law. We untwist and dissect energy law and regulation, focusing on key cases in the East, the Midwest, and California. In integrating the recent federal court interpretations, the Article I and VI constitutional double helix remains the critical legal restriction arresting the future of U.S. energy policy and infrastructure. Each region's law creates a distinct wedge into energy infrastructure, …

The Carbon Suite In The Hotel California: "We Are All Just Prisoners Here, Of Our Own Device", Steven Ferrey

Suffolk University Law School Faculty Works

As in the Eagle’s classic album and song “Hotel California,” California became a legal “prisoner of its own device,” amid a suite of legal challenges for exceeding the U.S. Constitution’s limits on state power. What distinguished California is not the large suite of recent legal challenges, but the fact that they are initiated by all stakeholders -- environmental, low-income, and industry groups. California was declared to have acted illegally on some basis, or it capitulated through settlement, in the majority of these challenges.

This article charts more than a half dozen recent and often successful challenges to California regulation based …

Marriage Equality In State And Nation, Anthony Michael Kreis

William & Mary Bill of Rights Journal

No abstract provided.

Taxing Judicial Restraint: How Washington's Supreme Court Misinterpreted Its Role And The Washington State Constitution, Nicholas Carlson

Seattle University Law Review

In the realm of constitutional interpretation, the judicial department reigns supreme. League of Education Voters v. State exemplifies the judiciary’s potential abuse of its interpretative role: The Washington Supreme Court misinterpreted its judicial function because it ignored the text of Washington State’s constitution and held a statute unconstitutional. The court, therefore, voided a statute because of judicial volition, not because Washington’s constitution demanded that outcome. This Note challenges the reasoning in League and makes a novel suggestion for Washington State constitutional analysis, an approach that may apply to other states. This Note details a new analytical framework for constitutional analysis …

Outside Influence, Anthony Johnstone

Faculty Law Review Articles

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the political community principle applied in Bluman v. Federal Election Comm’n as an exception to the otherwise universal speaker-neutrality rule of Citizens United v. Federal Election Comm’n. It draws parallels between efforts to police national and state boundaries in politics, and the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations of outside influence across a range of political activities. Part I …

Rethinking The Right To Vote Under State Constitutions, Michael T. Morley

Scholarly Publications

No abstract provided.

State Constitutional Études: Variations On The Theme Of A Contemporary State Constitutional Problem, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Charm City Televised & Dehumanized: How Cctv Bail Reviews Violate Due Process, Edie Fortuna Cimino, Zina Makar, Natalie Novak

University of Baltimore Law Forum

On May 28, 2013, Torrey Johnson5 struggles to raise both his hands, handcuffed and seated shoulder-to-shoulder between two other defendants in the first row of the closed circuit television (“CCTV” or “videoconference”) bail review hearing room within the Baltimore Central Booking and Intake Center (“Centeral Booking”). There are two more rows of defendants behind Mr. Johnson, all in yellow jumpsuits, being watched by correctional officers. Separated by a three-foot wall, Mr. Johnson’s public defender sits out of sight from the video camera’s field of view, about ten feet away from her client. The judge quickly reads through Mr. Johnson’s rights. …

Recent Development: Motor Vehicle Admin. V. Deering: A Driver Whose License Is Suspended Under The "Implied Consent, Administrative Per Se Law" Is Not Entitled To Consult With An Attorney Before Deciding Whether To Take A Breath Test, Patrick Toohey

University of Baltimore Law Forum

The Court of Appeals of Maryland held the implied consent, administrative per se law (“administrative per se law”) does not require that a suspected drunk driver be given the opportunity to consult an attorney before deciding whether to take a breath test. Motor Vehicle Admin. v. Deering, 438 Md. 611, 637, 92 A.3d 495, 511 (2014). The court found that the due process clause of the Fourteenth Amendment of the United States Constitution does not establish a pre-test right to counsel for a suspected drunk driver in an administrative proceeding.

The Strange Politics Of Medicaid Expansion, 47 J. Marshall L. Rev. 947 (2014), Steven Schwinn

UIC Law Review

This paper first outlines the Medicaid program, Medicaid expansion in the PPACA, and the Court’s ruling on Medicaid expansion in NFIB. It next explores the impacts of the opposition to Medicaid expansion. In particular, it details the substantial federal resources that opposing states will leave on the table, the health insurance coverage that states stand to deny to their poor citizens, and the constitutional law that opposing states left in NFIB.

Where Are We At? The Illinois Constitution After Forty-Five Years, 48 J. Marshall L. Rev. 1 (2014), Ann Lousin

UIC Law Review

No abstract provided.

Escape From Freedom: Why “Limited Lockstep” Betrays Our System Of Federalism, 48 J. Marshall L. Rev. 325 (2014), Timothy P. O'Neill

UIC Law Review

The Illinois Supreme Court has ironically chosen to make the Illinois Constitution completely insignificant in several areas of constitutional law. It has accomplished this through “the limited lockstep doctrine.” This approach is used to interpret cognate provisions of the U.S. and Illinois Constitutions.