Constitutional Law Commons^™

Taking Care Of Federal Law, Leah Litman

Articles

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …

Arms Control: Salt Ii- Executive Agreement Or Treaty?, Keith E. Fryer, J. Michael Levengood

Georgia Journal of International & Comparative Law

No abstract provided.

September 14, 2015: Just Leave Me Alone On The New Year, Bruce Ledewitz

Hallowed Secularism

Blog post, “Just Leave Me Alone on the New Year“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan Weinstein, Brian Connolly

All Maxine Goodman Levin School of Urban Affairs Publications

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, …

September 12, 2015: The Iranian Deal “Passes”, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Iranian Deal “Passes”“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen

Osgoode Hall Law Journal

Book review of Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman.

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Scholarly Articles

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing.
/="/">
/="/">Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.”
/="/">
/="/">Statutory minimum recoveries for defendants’ violations of plaintiffs’ …

September 7, 2015: A Heideggerian Prayer, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Heideggerian Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 6, 2015: Kim Davis Is No Religious Martyr, No Prisoner Of Conscience, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Kim Davis is No Religious Martyr, No Prisoner of Conscience“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 2, 2015: How To Be Secular, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to be Secular“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Plenary Power Is Dead! Long Live Plenary Power, Michael Kagan

Michigan Law Review First Impressions

For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have reaffirmed plenary power. Instead, the Court produced a splintered decision that did neither. This Essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.

The Strange Persistence Of Affirmative Action Under Title Vii, Deborah C. Malamud

West Virginia Law Review

No abstract provided.

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Testimony On Oklahoma Civil Asset Forfeiture Reform, Stephen Henderson

Other Faculty Publications

I am grateful for the opportunity to speak to you today about Senate Bill 838 and the reform of Oklahoma’s civil asset forfeiture. I am a professor of law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure. I have experience achieving consensus solutions in contested areas of law, most notably in the six years I spent drafting a new set of ABA Criminal Justice Standards, and I know that change is rarely easy. No matter the topic and whatever the status quo, there is sure to be someone who feels it is …

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. …

Understanding The History Of Institutionalization: Making Connections To De-Institutionalization And The Olmstead Act For Persons With Intellectual Disabilities In The State Of Illinois, Nancy A. Cheeseman

Dissertations

What is the historical connection between deinstitutionalization and the Olmstead decision? The purpose of this study was to examine and analyze policy within a historical perspective the connections between institutional care, deinstitutionalization, the Olmstead decision, and the effect on persons with intellectual disabilities lived experience, in the state of Illinois.

The data collected include, the transcripts of interviews with four participants, artifacts from policy documents and historical papers accessed from the Disability Museum online journals. The creation of a table for use in coding themes as associated with 5 (out of 18) core concepts for disability policy.

The Olmstead decision …

Big Data Blacklisting, Margaret Hu

Faculty Publications

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …

Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie

ConLawNOW

Soon after the United States Supreme Court’s decision in Obergefell v. Hodges, some elected officials and civil servants objected to the requirement that same-sex couples be offered marriage licenses. In particular, they argued that a government employee whose job duties include issuing marriage licenses cannot be forced to do so if it would violate his or her religion’s dictates. This piece argues that position is unavailing as it ignores the jurisprudence construing the free exercise clause of the First Amendment as well as the mandate created by the Court’s interpretation of the Fourteenth Amendment in Obergefell.

The Position And Authority Of The Aceh Shari'a Court On The Indonesian Justice System, Sufiarina Sufiarina

Indonesia Law Review

Article 27 paragraph (1) of Law No. 48 Year 2009 regarding Judicial Power states that special courts can only be formed in one of the court systems under the Supreme Court, which include general courts, religious courts, military courts and state administration courts. However, article 3A paragraph (2) of Law No. 50 Year 2009 concerning the Second Amendment to the Law on Religious Court places Shariah Court as a special court within the system of religious courts and as a special court within the system of general courts. Such positioning is inconsistent with Article 27 paragraph (1) of the Law …

The Political Context Of Judicial Review In Indonesia, Fritz Edward Siregar

Indonesia Law Review

The Constitutional Court of Indonesia plays significant role in securing democracy in Indonesia. In exercising their authorities, including the election result dispute and judicial review, the Court continues to affirm institutional judicial legitimacy and pursue their role to guard 1945 Constitution. The first Chief Justice Jimly Asshiddiqie showed how within five years of the Court’s establishment, he could strategically maximize its momentum and build the Court as a respectful institution. The Chief Justice Mahfud M D was then elected to reduce the judicial activism started by Jimly’s bench. However, against promises and expectations, Mahfud M D brought the Court to …

The Purpose Of Law, Pancasila And Legality According To Ernst Utrecht: A Critical Reflection, Fernando Morganda Manullang

Indonesia Law Review

Ernst Utrecht is one of the best legal scholars Indonesia has ever had. His political views position him as an organic intellectual; a legal scholar involved in and expressing the social consciousness, both in the academic as well as in the political arena. His controversial involvement came to a tragic end, causing him to leave Indonesia for good. This article describes and reflects on some of Utrecht’s rather controversial ideas about law and politics; namely, first, “pengayoman” (guardianship) the purpose of law in Indonesia, a purpose of law which is almost completely absent from the mainstream conception of the purpose …

August 30, 2015: Is There A World Beyond Capitalism?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is There a World Beyond Capitalism?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Arguments In Support Of A Constitutional Right To Atmospheric Integrity, Elizabeth Fuller Valentine

Pace Environmental Law Review

As used in this paper, “atmospheric integrity” refers to the interrelated physical, chemical, and biological processes on planet Earth that enable human and non-human life now and in the future and recognizes that modern civilization has developed within the relatively stable, current geologic period known as the Holocene. I chose to focus on atmospheric integrity, rather than more broadly on environmental integrity, because the health of terrestrial and aquatic habitats is inextricably tied to atmospheric stability. This assertion is not meant to minimize the multitude of harms impacting land and water. It is just that the magnitude of the climate …

August 26, 2015: Introducing Constitutional Law In The Midst Of The Plight, Bruce Ledewitz

Hallowed Secularism

Blog post, “Introducing Constitutional Law in the Midst of the Plight“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell

Akron Law Review

In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.

Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell

Akron Law Review

In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.

Rescue Units Operated By Municipal Fire Departments: Their Status Under The Doctrine Of Municipal Immunity, John D. Shuff

Akron Law Review

At the outset it should be indicated that the view taken by this writer does not purport to be unbiased. Rather, it is his intent to place a few more munitions in the arsenal of those who propose that the doctrine of municipal sovereign immunity be abrogated in its entirety.

The first part of the discussion (Section II) will focus upon the background and current status of the municipal immunity doctrine, with special emphasis upon the governmental-proprietary distinction. Section III will discuss the effects and interpretations of the Uniform Traffic Act and how they relate to municipal immunity. In addition, …

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

Denial Of Speedy Trial - Mandamus For Dismissal: Smith V. Hooey, Charles F. Brumbach

Akron Law Review

The Court reasoned that the timely assertion by defendant-petitioner of his constitutional right to a speedy trial gave rise to a corresponding duty on the part of the state to bring him to trial without undue delay.The Court rejected the state's argument that Texas was, in this instance, free from Sixth Amendment constraints, observing that this argument was based on an erroneous conception of the nature of comity.

Given the recognized right to a speedy trial, and given the corresponding duty on the part of the state to affirmatively secure that constitutional right, the breach of such a duty will …