Constitutional Law Commons^™

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Stitch Incoming: Lindke V. Freed’S Impact On Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

Washington and Lee Law Review Online

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining …

A Uniform Choice? Esas And The State Right To Education, Hadiah C. Mabry

Notre Dame Law Review

Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. They join the ranks of more established programs like school vouchers, tax credits, and charter schools.

Unlike …

Roving Extraterritoriality: The Murky Doctrine On State Laws Regulating Absent Citizens, Leo Schlueter

Notre Dame Law Review

It is generally agreed that sovereigns have the power to punish the crimes of their citizens abroad, at least in some situations. But sovereigns rarely exercise this power, and its contours are not well understood. This is especially true in the context of American federalism. It is unclear to what degree states have retained their sovereign extraterritorial powers, and the Supreme Court has never had occasion to fully explain their limits. Recent political developments, however, make it plausible that the question will soon arise. This Note attempts to provide some insight into the future debate over state criminal extraterritorial jurisdiction …

The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment On Kunal Kamra V. Union Of India, Abhinav Ravi, Aravind Sundar

National Law School of India Review

The Bombay High Court in Kunal Kamra v Union of India struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which had established a centralised fact-checking unit to issue takedown orders against social media posts that were identified as “fake or false or misleading”. The Rules threatened the safe harbour protection of social media intermediaries for failing to adhere to such takedown orders. The Court held that the establishment of the fact-check unit violates the rights of free speech, profession and equality under the Indian Constitution. This article explores the free speech implications of …

The Last Word On The Ohio Constitution, Jonathan L. Entin

Et Cetera

This essay offers a detailed overview of Steinglass & Scarselli’s significantly revised and expanded second edition of The Ohio Constitution, the leading analysis of that subject. The essay explores some broad themes, including judicial review, judicial independence, the relationship between the judiciary and the political branches of Ohio government, separation of powers, race and gender, the new judicial federalism, and the process for amending the Ohio Constitution. The book is an extraordinary resource for the Ohio bench and bar as well as for the general public. The essay explains why that is so and suggests that readers will use this …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

A Long Road Ahead: Examining The Constitutionality Of New York City’S Congestion Pricing Plan, Emily Dulberg

Brooklyn Law Review

New York City attempted to implement New York’s first congestion pricing scheme, the Central Business District Tolling Program (CBDTP). The CBDTP was paused by Governor Kathy Hochul amidst concerns that the scheme will have negative impacts on families who have not financially recovered from the pandemic. The CBDTP sought to charge drivers a fee each time they entered the Central Business District (CBD), an area below 60th Street in Manhattan. The purpose of this plan was to raise funds for the Metropolitan Transit Authority (MTA) to improve mass transit while simultaneously decreasing pollution and traffic congestion in New York City. …

Education’S Inextricable Ties To Democracy: Brown V. Board Of Education And Its Democratic Aspirations, Kayla Griffin Green

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Shadows Of The Crown: The Virtue Of Equilibrium In American Sovereign Immunity, William T. Olmstead

Cleveland State Law Review

Under the doctrine of sovereign immunity, the federal and state governments of the United States cannot be sued or prosecuted unless they voluntarily waive their own impunity. In recent decades, the Supreme Court has expanded the scope of the sovereign immunity of the state governments. This Note argues that such an expansion is a profound and shortsighted mistake. It proposes that the most effective way to balance governmental functionality with civic accountability is to pass and ratify a constitutional amendment that solidifies national sovereign immunity and abolishes state sovereign immunity. It argues that such action is necessary to ensure the …

Custodians Of Civility, Defenders Of Democracy, Guardians Of Justice, Lee Fisher

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Democracy & The Ohio Constitution – Recapturing The Innovative Spirit Of The 1912 Ohio Constitutional Convention, Melody J. Stewart

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Cleveland State Law Review

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering.

But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

A Proposal To Rebalance Direct Democracy In The Ohio Constitution, Mark Wagoner

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Improper Indeterminate Incarceration: Navigating The Constitutional Quandaries Of The Reagan Tokes Law's Powers And Procedures, Sophie M. Piteo

Cleveland State Law Review

This Article advocates for an amendment to the statutory provisions that make up Ohio’s indefinite sentencing scheme to better protect offender’s constitutional rights. Through an analysis of the Reagan Tokes Law and the Ohio Supreme Court’s ruling in State v. Hacker, this Article traces the evolution of Ohio’s indefinite sentencing framework, which was reinstated in 2019. It contrasts the current scheme with the previously invalidated, but very similar, Bad Time Law, which was struck down in 2000 for violating the separation of powers clause and due process rights. While the Reagan Tokes Law emerged from concerns for public safety …

Direct Democracy: Ohio Style, Steven H. Steinglass, Ernest M. Oleksy

Cleveland State Law Review

This Article is an expansion of comments by Steven H. Steinglass at a Symposium on Democracy sponsored by the Cleveland State Law Review and held on October 27, 2023. The Symposium looked broadly at threats to democracy, but the panel on which he participated focused more narrowly on the Ohio Constitution and Democracy. The Article reviews the history of direct democracy in Ohio with an emphasis on the constitutional initiative. Part I of this Article discusses the historical origins of direct democracy in Ohio and the iconic Ohio Constitutional Convention of 1912 that proposed Ohio’s direct democracy amendment. Particular …

A Fundamental Failing: The Mississippi Judiciary's Abrogation Of Its Constitutional Duty, Brad Robertson

MC Law Review

No abstract provided.

Rising Temperatures, The Prison Litigation Reform Act, And The Heat Death Of Human Dignity In Texas Prisons, Brianne Wylie

Northwestern University Law Review

This Note seeks to shed light on the life-threatening danger of extreme heat in un-air-conditioned Texas prisons. The Prison Litigation Reform Act (PLRA) starkly limits the relief available to those suffering and dying in these prisons. This Note proposes an amendment to the legislation that could create a path toward lasting relief for incarcerated people. After analyzing the effects of increasing heat on the particularly vulnerable prison population, this Note analyzes how the Supreme Court and the Fifth Circuit have handled claims alleging constitutionally violative prison conditions under the Eighth Amendment—in short, ineffectively, if at all. This Note then details …

A Take On "Special Solicitude" In State Standing: Reconciling The Unreconcilable, Audrey M. Woodward

University of Cincinnati Law Review

No abstract provided.

Lawyers, Guns, And Marijuana: How N.Y. State Rifle And Pistol Ass'n V. Bruen Is Shaping Federal Marijuana Law, Mia Cordle

University of Cincinnati Law Review

No abstract provided.

City Of Portland V. Depaolo: Defining The Role Of Stare Decisis In State Constitutional Decisionmaking, Thad B. Zmistowski

Maine Law Review

Five years ago, the Maine Supreme Judicial Court, sitting as the Law Court, aligned itself with a growing number of states by adopting the primacy method of state constitutional decisionmaking. Under the primacy method, a state court decides an issue of constitutional law by first looking to that state's own constitution; if the issue is resolvable on state constitutional grounds, the federal constitutional grounds are not reached. Adoption of the primacy method by numerous state courts has generated considerable debate concerning issues of state constitutional law. Little discussion, however, has focused on the methodology of state constitutional adjudication. As a …

Taxpayer Standing And The Preventive-Remedial Distinction: A Call For Reform, Alicia E. Flaherty

Maine Law Review

The Maine Law Court has observed that, "a central function of American courts [is] to protect and relieve the individual from injurious unconstitutional conduct by government officials." Apart from the political process, the judicial process is the only means through which citizens can ensure that government conforms to the law. The courts provide a forum for citizens to challenge the legality of official acts, and serve as a "means of correcting illegal practices of government officials which would otherwise be irreparable." The question of standing is a critical element of the court's task of balancing the individual's right to challenge …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

Want To Solve Labor Shortages? Relaxing The Child Labor Law Is Not The Answer, Yi Wu

Dickinson Law Review (2017-Present)

Recently, the United States has been engaged in a nationwide debate over loosening regulations regarding children’s employment. The Fair Labor Standards Act (FLSA) sets restrictions on the working hours of children under 16 and prohibits their employment in certain hazardous positions. However, some states, such as Iowa, Ohio, Arkansas, and Wisconsin, have either passed or are considering legislation allowing children to work longer hours or in potentially dangerous conditions in response to labor shortages. These new state laws conflict with existing federal regulations. This Comment discusses why states should refrain from relaxing their child labor laws to permit children to …

Back To The Future: Revisiting State Constitutions To Protect Against New Technological Intrusions, Matthew Radford

Washington and Lee Law Review

The Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.

Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the …