Constitutional Law Commons^™

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

The Congruent Constitution (Part One): Incorporation, Jay S. Bybee

BYU Law Review

In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the …

Increasing Voter Investment In American Democracy: Proposals For Reform, Adam Drake

Fordham Law Voting Rights and Democracy Forum

Millions of Americans choose to stay home every election cycle. Polling suggests that these nonvoters are either apathetic with respect to the democratic process or feel alienated from the United States government. Reforms to the democratic system should focus on alleviating these sentiments, ultimately encouraging more voters to show up to the polls. As turnout increases, so too does the legitimacy and stability of the U.S. government.

With that goal in mind, this Article advocates for a five- prong approach to reforming the electoral system. The first proposed step is to eliminate unnecessary barriers to voting by establishing federal automatic …

Scotus On Immigration: A Review Of Recent Decisions & What's To Come, Cardozo Journal Of Equal Rights And Social Justice

2022 Event Invitations

Please join the Cardozo Journal of Equal Rights and Social Justice for a panel discussion with seven immigration attorneys. The discussion will cover recent SCOTUS decisions impacting immigration, the impacts of these decisions and important cases on the docket for this upcoming session.

Moderator: Mauricio Noroña, Visiting Clinical Assistant Professor of Law in the Kathryn O. Greenberg Immigration Justice Clinic, Cardozo Law

Panelists:

• Peter Markowitz, Associate Dean of Equity in Curriculum and Teaching and Professor of Law, Founding Faculty Member and Co-Director of the Kathryn O. Greenberg Immigration Justice Clinic, Cardozo Law

• Lindsay Nash, Associate Professor of Law, Co-Director of …

Scotus On Immigration: A Review Of Recent Decisions & What's To Come, Cardozo Journal Of Equal Rights And Social Justice

2022–2023 Flyers

Click here to view the event invitation.

The Presidential Succession Act At 75 | The 1947 Act And The Judiciary: Would The Courts Decide Who Is President?, Gregory F. Jacob

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed …

The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby

William & Mary Law Review Online

On June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.

As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life—protected as a fundamental …

Running On Empty: Ford V. Montana And The Folly Of Minimum Contacts, James P. George

Faculty Scholarship

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability …

What Is The Standard For Obtaining A Preliminary Injunction In Virginia?, Stuart A. Raphael

University of Richmond Law Review

A perception exists that the Supreme Court of Virginia has not articulated the legal standard for adjudicating preliminary-injunction motions in Virginia circuit courts. For decades, lawyers and legal scholars have advocated that Virginia trial judges borrow the federal preliminary-injunction standard applied in the United States Court of Appeals for the Fourth Circuit. Virginia trial courts have generally followed that advice. Virginia courts at first applied the Fourth Circuit’s Blackwelder test, which called upon judges to balance the four traditional factors and allowed a stronger balanceof-hardship showing to offset a weaker showing of likely success on the merits. After the 2008 …

Brief For Amicus Curiae Professor Derek T. Muller In Support Of Respondents, Daniel M. Sullivan, Daniel M. Horowitz, Derek T. Muller

Court Briefs

No. 21-1271
Timothy K. Moore v. Rebecca Harper

On Writ of Certiorari to the Supreme Court of North Carolina

From the Summary of Argument

The petition for certiorari in this case presents the question whether the phrase “Legislature thereof” in the Elections Clause of the Constitution bars state courts from regulating the contours of Congressional redistricting pursuant to state constitutions. But Congress has spoken, too. It has regulated the manner of drawing congressional districts by federal statute. See 2 U.S.C. § 2c. Congressional redistricting in a State now takes place pursuant to this federal statutory directive, which contemplates a role …

Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola

SLU Law Journal Online

Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson

Indiana Law Journal

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court …

The Trouble With Court-Packing, Neil S. Siegel

Faculty Scholarship

Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. This Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, this …

The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West

Washington and Lee Law Review

At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text specifically referencing it …

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.

Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti

Marquette Law Review

Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …

Funding Faith: The Paycheck Protection Program's Establishment Clause Violation, Brenna Jean O'Connor

St. John's Law Review

(Excerpt)

In the early months of 2020, COVID-19 had a swift and profound impact on public health, the economy, state and local governments, and businesses across the United States. In response, on March 27, 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to protect the American people from the worsening public health crisis and mitigate the resulting economic downturn. Additionally, within the CARES Act, Congress established the Paycheck Protection Program (“PPP”), which expanded the Small Business Administration’s (“SBA”) authority to guarantee forgivable loans to eligible small businesses. Among other prerequisites, the PPP …

Original(Ism) Sin, G. Alex Sinha

St. John's Law Review

(Excerpt)

During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …

Tinjauan Yuridis Dalam Penyelesaian Pelanggaran Ham Berat Melalui Komisi Kebenaran Dan Rekonsiliasi Di Afrika Selatan Dan Indonesia, Tshana Erfandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Several countries are currently developing a solution to the problem by establishing a particular commission. The commission works outside the courts, parliament and executive. In Indonesia, In Indonesia. The People's Consultative Assembly set a stipulation regarding the establishment of the National Center for Truth and Reconciliation: (NCTR) in 2000. This stipulation has the intent and purpose for national unity to identify existing problems, determine the conditions that must be made in order to achieve national reconciliation and establish policy direction as a guide to carry out the consolidation of unity of a nation. Whereas in South Africa, the National …

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin

Indiana Law Journal

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …

Compelled Speech And The Regulatory State, Alan K. Chen

Indiana Law Journal

Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk

Indiana Law Journal

Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …