Constitutional Law Commons^™

Agenda Control And Precedent, Thomas P. Schmidt

Faculty Scholarship

The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court’s powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal …

Against A Medical Exception To Equal Protection, Govind Persad

Washington and Lee Law Review

Government regulations of medicine sometimes treat patients differently based on their race or sex. Does heightened scrutiny apply to such regulations—as is usual when law treats someone differently based on a protected characteristic? Or is there a medical exception to equal protection?

Recently, in United States v. Skrmetti, the Supreme Court upheld a law that restricted access to medical treatments for transgender minors. Though its holding did not rely on medical exceptionalism, its discussion reinvigorated interest in a “medical exception” to equal protection: that medical decisions are exempt from the searching review applied when governmental decisions consider protected characteristics.

For …

American Public Law Revolution, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law—it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics. This Article examines three myths about originalism—that it is primarily about history, that it is a traditional theory of adjudication, and that it is democratic. Originalism is a semantic theory, not a theory of history, and it is a theory that privileges …

The Evolution Of The Supreme Court's Second Amendment Jurisprudence, Kermit V. Lipez

Maine Law Review

We live in the shadow of an epidemic of gun violence. We dread the next report of an inevitable mass shooting. We no longer feel secure in public places. We fear for the safety of our children and our grandchildren at their schools. We shake our heads in disbelief at the empty ritual of "thoughts and prayers" for victims and their families. As one commentator put it, we suffer from the "[u]nbearable [m]onotony of [g]rief." Why must we live like this? Why are there no solutions? In conversations posing these questions, there are often references to the Supreme Court's Second …

U.S. Trade Law And Policy At A Crossroads, John K. Veroneau

Maine Law Review

The past decade has witnessed significant changes in U.S. international trade policy. In his first presidential term, Donald J. Trump moved the United States away from long-standing policies of lowering trade barriers to facilitate global commerce and replaced them with a more restrictive version not seen since the early twentieth century. President Trump's more trade-restrictive policies were largely extended by his successor, President Joseph R. Biden. The first year of President Trump's second term has indicated a strong desire to restrict imports further in an attempt to create U.S. manufacturing jobs and reduce reliance on Chinese imports. This Article seeks …

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Northwestern University Law Review

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

The Vanishing Enforcer: Consumer Protection In An Era Of Dual Retrenchment, Alisher Juzgenbayev

Northwestern University Law Review

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws …

To Vacate Or Not To Vacate: Partial Remedies And Mootness In Federal Habeas Of State Convictions, Jeffrey Greenbaum

University of Cincinnati Law Review

This Article addresses two related issues in the federal habeas of state convictions. First, it analyzes a circuit split that recently emerged over whether a state’s appeal would be moot after a federal district court grants habeas and a state vacates its own judgment. One view is that the state vacatur would render the appeal moot because the prisoner is no longer in custody. A second view is that the appeal would not necessarily be moot because a partial remedy could be available. Second, this Article identifies some courts conflating the language of a state’s vacatur in habeas and evaluates …

Checkmate Or Stalemate: The Epa, California, And The Future Of Waivers Under The Clean Air Act, William B. Gale

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Brief Of First Amendment Scholars As Amici Curiae Supporting Petitioner, Joseph M. Terry, Stephen J. Fuzesi, James N. Sasso, Langston E. Ward, Richard W. Garnett

Court Briefs

No. 25-927
Richard Lowery v. Lillian Mills

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

The suppression of constitutionally protected speech violates the First Amendment. A speaker need not be punished to be able to state a cause of action if the government has suppressed or threatens to suppress his or her speech through other means. This Court, across decades, and in a range of contexts, repeatedly has reaffirmed that principle. It has done so in cases affirming that a party may challenge a criminal statute …

"In Better Times": The Basis Of Representation And The Forgotten History Of The Fourteenth Amendment, Jessica I. Gorovitz

Fordham Law Review

Over the past several years, the U.S. Supreme Court has incorporated history into the analysis of unenumerated individual rights, like abortion, and enumerated ones, like the right to keep and bear arms. But it has not incorporated history into its approach to individual rights claims of racial discrimination under the Equal Protection Clause, a methodological gap the Court has left unexplained. Rather, it has held that the purpose of the Fourteenth Amendment is to prevent racial classifications, largely citing its own precedent, eschewing the Amendment’s history. This approach conflicts with section 2 of the Voting Rights Act, which requires states …

Constitutional Structure And Election Law, Manoj Mate

William & Mary Bill of Rights Journal

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades, the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases.

This Article analyzes these dynamics and advances a typology of constitutional structure-based approaches in election law. Drawing on scholarship on modalities of interpretation and …

Free Speech Trapped In Amber: The Rise Of The 'History And Tradition' Test, From Unregulated Guns To Highly Regulated Speech, Matthew D. Bunker, Emily Erickson

William & Mary Bill of Rights Journal

An insidious virus appears poised to invade First Amendment free speech doctrine. “History and tradition,” a deeply flawed variant of originalism, threatens to transform speech law from a rational enterprise, employing tiers of scrutiny to evaluate potential infringements on speech, to a random scavenger hunt through the distant past that could upend numerous vital First Amendment principles.

Traditionalism’s ascendence to the forefront of history-centric constitutional interpretation was heralded in three dramatic cases decided at the end of the U.S. Supreme Court’s October 2021 term. New York State Rifle & Pistol Ass’n v. Bruen elicited particular concern among First Amendment scholars, …

Confronting Imitation: Questioning Fair Use After Warhol, Genevieve Stegner-Freitag

William & Mary Bill of Rights Journal

The Constitution’s Intellectual Property Clause (IP Clause) contains a mandated goal of “progress” for copyright. Efforts to address what progress means move between some understanding it to be a specific Enlightenment-oriented term, progress as a forward-moving, Judeo-Christian ideal, to others viewing the term as strictly economic, understanding the goal of copyright is to get as many different products in the market as possible. Defining what progress means in copyright law is a necessary step, as courts are increasingly considering market forces in granting or denying authorial property rights. This Note addresses what progress means, how imitative art factors in, and …

Grants Pass And The Innocence Limit, Gregory Cui, Emily Clark

William & Mary Law Review

This Article examines City of Grants Pass v. Johnson as an important development in the Supreme Court’s doctrine concerning the Constitution’s “innocence limit.” This limit is a fundamental boundary on the state’s power to punish; it provides that criminal punishment may only apply to that which is morally culpable or blameworthy and thus may not apply to wholly innocent conduct. This principle was famously expressed in Robinson v. California, but this Article identifies a broader network of cases in which the Court has consistently effectuated the innocence limit and intervened against prosecutions of the innocent. This Article observes that …

All The King’S Lawyers, Rebecca Aviel

Fordham Law Review

No abstract provided.

Complicit Nullification: The Illegitimate (Abrogation) Of School Religious Liberty Precedent, Amanda Harmon Cooley

Cardozo Law Review

Louisiana has enacted legislation that mandates the display of the Ten Commandments in every public school classroom. This statutory mandate directly contradicts the Supreme Court’s extant precedent in Stone v. Graham. Legislators in Texas, North Dakota, South Dakota, Oklahoma, Tennessee, and Kentucky have also indicated plans to introduce similar unconstitutional legislation, defying the Supreme Court’s interpretations of the First Amendment’s Religion Clauses. Similarly, Texas and Florida now permit public school chaplains or Bible-based public school curricula, which violates the Court’s longstanding prohibitions on such actions, as established in its 1948 ruling in Illinois ex rel. McCollum v. Board of Education …

Stuck In The Waiting Room: Medina V. Planned Parenthood’S Restriction On The Enforcement Of Spending Statutes Through 42 U.S.C. § 1983, Rebekah Rooks

Mercer Law Review

42 U.S.C. § 1983 was originally enacted in response to Ku Klux Klan violence during the Reconstruction era that had gone largely unpunished in state courts. The statute granted individuals an alternative means to enforce their “rights, privileges, or immunities secured by the Constitution and laws” in federal courts. What began as a lifeline for civil rights violations soon expanded to allow enforcement of all rights secured by federal and constitutional law. This broad interpretation of § 1983 language expanded the statute’s reach to include private enforcement of federal spending statutes against the states. The expansion ignited extensive debate over …

The Flaws Of Bruen And The Principle Of The Second Amendment, Cameron Collins

Catholic University Law Review

With a six Justice majority, the Court is more conservative than it has been in ninety years. No time has been wasted as the conservative Justices take aim at legal precedents left over from a more progressive era on the Court. There being no prior test established by the highest Court to review legal challenges on Second Amendment grounds, the Court took the opportunity to write new precedent in New York State Rifle Pistol Association, Inc. v. Bruen. Rather than stick with the means-end scrutiny framework that had been developing in the circuit courts, the Supreme Court established a …

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 …