Constitutional Law Commons^™

The New Racial Justice: Moving Beyond The Equal Protection Clause To Achieve Equal Protection, Emily Chiang

Florida State University Law Review

Since handing down Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the United States Supreme Court has significantly curtailed the ability of plaintiffs to bring disparate impact claims under the Equal Protection Clause. Many academics continue to talk about the standards governing intent and disparate impact. Some recent scholarship recognizes that reformers on the ground have shifted away from equality-based claims altogether. This Article contends that civil rights advocates replaced the old equal protection framework some time ago and that they did so deliberately and with great success. It expands upon and refines the strategy shift some …

The Visible Effects Of An Invisible Constitution: The Contested State Of Transdniestria's Search For Recognition Through International Negotiations, Nadejda Mazur

Maurer Theses and Dissertations

Most scholars agree that modern states share several defining characteristics: a population, territory, government, and the capacity to enter into international relations. More recently, this list has expanded to include the criteria of democracy, the rule of law, and the protection of human rights. These traditional and contemporary criteria for statehood are likewise essential for settling the status of de facto states, entities that seek international recognition yet are rebuffed by the world community.

By examining the criteria for international recognition from the perspective of constitutional law, this dissertation reveals the existing but overlooked relationship between the recognition process and …

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

All Faculty Scholarship

This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …

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 …

Constitutional Criminal Procedure, Charles E. Cox Jr.

Mercer Law Review

Each year the United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit issue numerous decisions concerning the rights afforded to criminal defendants by the United States Constitution. This Article surveys selected Eleventh Circuit and Supreme Court decisions issued in 2013 that will likely be of interest to criminal law practitioners.

The Price Of Privacy, 1973 To The Present, Mary Ziegler

Scholarly Publications

The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade. Roe is seen to have promoted a single-issue agenda based on the importance of privacy and choice. Because Roe so quickly came under attack, its defense became a priority, and activists speaking out in favor of the opinion felt encouraged to defend it on its own terms. If the abortion issue were a matter of ordinary politics rather than constitutional law, the argument goes, activists would be free to develop more compelling claims for reproductive rights and to pursue a broader reproductive-health …

Unpopular Constitutionalism, Mila Versteeg

Indiana Law Journal

Constitutions are commonly thought to express nations’ highest values. They are often proclaimed in the name of “We the People” and are regarded—by scholars and the general public alike—as an expression of the people’s views and values. This Article shows empirically that this widely held image of constitutions does not correspond with the reality of constitution making around the world. The Article contrasts the constitutional-rights choices of ninety countries between 1981 and 2010 with data from nearly one-half million survey responses on cultural, religious, and social values conducted over the same period. It finds, surprisingly, that in this period, the …

Ethics, Advocacy, And The Child Client, Suparna Malempati

Cardozo Public Law, Policy & Ethics Journal

The article argues that lawyers representing children in abuse and neglect proceedings should act as traditional advocates, respecting the child's autonomy and adhering to ethical standards, rather than adopting a paternalistic role akin to a guardian ad litem. This approach ensures that children's voices are heard and their legal rights are protected.

The Mandatory Death Penalty In Ghana: A Comparative Constitutional Perspective On Dexter Johnson V. Republic, Andrew Novak

Cardozo Public Law, Policy & Ethics Journal

The article examines the Supreme Court of Ghana's decision to uphold the mandatory death penalty, contrasting it with the global trend towards abolition. It highlights the tension between the court's textual interpretation of the constitution and international human rights pressures, emphasizing the need for legislative reform to align with human rights standards.

Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, Karolina Milewicz

Indiana Journal of Global Legal Studies

Global constitutionalization is a recent phenomenon that is decisively changing the character of the international order. This argument was put forward recently by scholars of international law and has gained significance in the institutional school of thought. However, the notion of "global constitutionalization" is often used imprecisely and has so far been largely neglected in the field of international relations. It still lacks a consistent and operational definition, which would enable political scientists and international relations scholars to conduct empirical research. This article explores a preliminary framework for the concept of global constitutionalization.

Global Constitutionalism – Process and Substance, Symposium. …

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

North Carolina Central Law Review

No abstract provided.

Systematic Ict Surveillance By Employers: Are Your Personal Activities Private?, Arlene J. Nicholas

Faculty and Staff - Articles & Papers

This paper reviews the various methods of information and communications technology (ICT) that is used by employers to peer into the work lives and, in some cases, private lives of employees. Some of the most common methods – such as computer and Internet monitoring, video surveillance, and global positioning systems (GPS) – have resulted in employee disciplines that have been challenged in courts. This paper provides background information on United States (U.S.) laws and court cases which, in this age of easily accessible information, mostly support the employer. Assessments regarding regulations and policies, which will need to be continually updated …

Graphic Labels, Dire Warnings And The Facile Assumption Of Factual Content In Compelled Commercial Speech, Nat Stern

Scholarly Publications

No abstract provided.

Contracts Symposium Issue: Featured Speaker: The Right To Contract As A Civil Right, Robin West

Georgetown Law Faculty Publications and Other Works

The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms.

So, …

Mandatory Life Without Parole Sentences For The Intellectually Disabled: A Violation Of The Eighth Amendment, Nick Bonham

Cardozo Public Law, Policy & Ethics Journal

The note argues that mandatory life without parole (LWOP) sentences for intellectually disabled individuals violate the Eighth Amendment's prohibition against cruel and unusual punishment. It contends that such sentences fail to account for the diminished culpability and rehabilitative potential of the intellectually disabled, rendering them disproportionate and unconstitutional. The analysis builds on precedents like Atkins v. Virginia, Graham v. Florida, and Miller v. Alabama, which established protections for groups with reduced moral responsibility. The note advocates for individualized sentencing to align with evolving standards of decency and constitutional safeguards.

An Originalist Argument For A Sixth Amendment Right To Competent Counsel, Erica J. Hashimoto

Scholarly Works

The Treason Act of 1696 provided a right to counsel in treason cases in England and laid the framework for the right to counsel both in England and in the United States. Evidence suggests that the Treason Act may have influenced the Framers of the Constitution; thus, any historical understanding of the Sixth Amendment right to counsel should consider the quality of representation treason defendants received. If, as appears to be the case, treason defendants had competent, experienced lawyers representing them, then the Sixth Amendment right to counsel may well include that right to such representation. This Essay suggest that …

Unitary Innovations And Political Accountability, Edward H. Stiglitz

Cornell Law Faculty Publications

An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one …

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …

Mini-Domas As Political Process Failures: The Case For Heightened Scrutiny Of State Anti-Gay Marriage Amendments, Steve Sanders

NULR Online

No abstract provided.

California Year In Review: 2013 Special Education Alj Decisions, Ruth Colker

Journal of the National Association of Administrative Law Judiciary

This article reviews 74 special education cases decided by California ALJs between January 1, 2013 and December 11, 2013. The author concludes that the ALJs provided stingy relief even when students prevailed, there was often unsuccessful litigation on behalf of a student following the termination of a consent decree or court order, many of the cases reflected negative attitudes towards the mothers of the student, and school districts often preferred more restrictive placements than the parent/student. Not surprisingly, students faced very unfavorable outcomes when they were not represented by a lawyer.

June 25, 2014: The Coming Revolution In Islam, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Coming Revolution in Islam“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

State V. Brossart: Adapting The Fourth Amendment For A Future With Drones, Thomas Bryan

Catholic University Law Review

No abstract provided.

June 22, 2014: You Cannot Make Peace With These People, Bruce Ledewitz

Hallowed Secularism

Blog post, “You Cannot Make Peace With These People“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Art Of Stripping: How The Government Applies The Takings Clause To Strip You Of Your Property, Toni Kong

Touro 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 …

The "Parcel As A Whole" In Context: Shifting The Benefits And Burdens Of Economic Life - Or Not, Edward J. Sullivan, Karin Power

Touro Law Review

No abstract provided.

A Trip Back In Time, Including Judge Charles D. Breitel's Rationale For His Fred French And Penn Central Decisions, Frank Schnidman

Touro Law Review

No abstract provided.

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

Touro Law Review

No abstract provided.

The Categorical (Lucas) Rule: "Background Principles," Per Se Regulatory Takings, And The State Of Exceptions, David L. Callies, David A. Robyak

Touro Law Review

No abstract provided.

The Categorical Lucas Rule And The Nuisance And Background Principles Exception, Carol Necole Brown

Touro Law Review

This article examines the seminal 1992 United States Supreme Court decision, Lucas v. South Carolina Coastal Council, specifically focusing on the Lucas nuisance exception. The author surveyed approximately 1,600 reported regulatory takings cases decided since the Lucas decision involving Lucas takings challenges. The author further identified the statutory nuisance cases in which state and local governments unsuccessfully asserted the Lucas nuisance exception as a defense to the courts’ findings of a Lucas taking. This article examines the prospective potential of these cases for assisting private property owners in enhancing private property rights protections within the area of regulatory takings.