Constitutional Law Commons^™

Cruel And Unusual Punishment: Denying Ex-Felons The Right To Vote, Amy Heath

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Perils And Possibilities Of Refugee Federalism, Burch Elias

American University Law Review

No abstract provided.

Obama's Conversion On Same-Sex Marriage, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Fair For Whom? Why Debt-Collection Lawsuits In St. Louis Violate The Procedural Due Process Rights Of Low-Income Communities, Aimee Constantineau

American University Law Review

No abstract provided.

Privatizing Bars On Abortion: Eviscerating Constitutional Rights Through Tort Remedies, Maya Manian

Scholarly Articles in Law Reviews & Journals

State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign …

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark Niles

Scholarly Articles in Law Reviews & Journals

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem ofprosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors arep rotectedfrom any liability arisingf rom these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application ofabsolute prosecutorial immunity, in part, by noting that other means of incentivizing appropriate prosecutorial conduct …

Regulating Gun Rentals, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

A machine gun overpowers a nine-year-old girl, erratically spraying bullets and accidentally killing her instructor; a perturbed mother slays her son and then takes her own life; a convicted felon circumvents federal prohibitions to access a firearm to commit suicide; and, perhaps most notably, Navy SEAL war veteran Chris Kyle, focus of the movie “American Sniper,” is murdered while attempting to help another veteran recover from post-traumatic stress disorder. We have all seen the headlines, but we have largely ignored the source of this heartbreak. The ramifications of these examples are not merely cinematic, but also involve families suffering from …

A Higher Power Produces Greater Problems: How Religious Honor Codes And Religious Schools Exacerbate Campus Sexual Assault, Samuel T. Jay

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Criminalizing Nonviolent Dissent: New York's Unconstitutional Repression Of The Boycott, Divestment, Sanctions (Bds) Movement, Dalal Hillou

American University Journal of Gender, Social Policy & the Law

No abstract provided.

"Your Corrupt Ways Had Finally Made You Blind": Prosecutorial Misconduct And The Use Of "Ethnic Adjustments" In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

American University Law Review

No abstract provided.

School Vouchers And Tax Benefits In Federal And State Judicial Constitutional Analysis, Joseph O. Oluwole, Preston C. Green Iii

American University Law Review

No abstract provided.

Walker V. Texas Division, Sons Of Confederate Veterans, Inc. And License Plate Speech: A Dangerous Roadblock For The First Amendment, Morgan E. Creamer

American University Law Review

No abstract provided.

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

What is the constitutional significance of the proverbial "keep off the grass" sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, "the people" may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education …

Griswold, Geduldig, And Hobby Lobby: The Sex Gap Continues, Maya Manian

Scholarly Articles in Law Reviews & Journals

In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. …

Shoot First, Ask Later: Constitutional Rights At The Border After Boumediene, Brittany Davidson

American University Law Review

Adopting Boumediene's functional approach in analyzing extraterritorial application of the United States Constitution at the U.S.-Mexico border will promote uniformity and provide guidance to courts and officials. Currently, courts are applying Verdugo-Urquidez's sufficient connections test, and different variations thereof permitting courts to arbitrarily decide who is entitled to constitutional protection in the absence of uniform precedent. Adopting Boumediene as the guiding test will not automatically trigger constitutional protection, instead, constitutional protection will only be granted if extending protection to an alien at the U.S.-Mexico border is justified based on the three-prong test.

Iq Intelligence Tests, "Ethnic Adjustments" And Atkins, Robert M. Sanger

American University Law Review

No abstract provided.

Going Green: Legal Considerations For Marijuana Investors And Entrepreneurs, Frank Robison

American University Business Law Review

No abstract provided.

The Young And The Restless: How The Twenty-Sixth Amendment Could Play A Role In The Current Debate Over Voting Laws, Nancy Turner

American University Law Review

The Twenty-Sixth Amendment is commonly understood as lowering the voting age to eighteen. However, a close look at the Amendment's language and history indicates that the Twenty-Sixth Amendment does more than just grant a right. Properly read, the Twenty-Sixth Amendment acts as an antidiscrimination law similar to the Fourteenth, Fifteenth, and Nineteenth Amendments. Accordingly, the Twenty-Sixth Amendment possesses the power not just to invalidate legislation that explicitly contravenes its purpose, but also to neutralize facially neutral legislation that was enacted with a discriminatory intent. Using Fourteenth and Fifteenth Amendment jurisprudence as a guide, this Comment proposes a framework for structuring …

At Long Last Marriage, Jack B. Harrison

American University Journal of Gender, Social Policy & the Law

Over time, the Supreme Court has made clear its belief that marriage is one of the most significant and fundamental rights provided protection under the Constitution. In his opinion in Griswold v. Connecticut, Justice Douglas characterized marriage as a “coming together for better or for worse, hopefully enduring, and intimate to the [point] of being sacred[,]” describing it as “an association that promotes a way of life . . . a harmony in living . . . [and] a bilateral loyalty.” The Court in Griswold clearly found that marriage was deserving of protection not solely because it was the locus …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Scholarly Articles in Law Reviews & Journals

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Yes, Virginia, There Are Stupid Questions, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

Justice Brennan And His Law Clerks, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

From Third Parties To Parents: The Case Of Lesbian Couples And Their Children, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez

Scholarly Articles in Law Reviews & Journals

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda …

The Aba, The Section Of Civil Rights And Social Justice, The Constitution, And The Supreme Court, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.