Constitutional Law Commons^™

Newsroom: Logan On Justice Scalia's Vitriol, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Cosmopolitan Law And Time: Toward A Theory Of Constitutionalism And Solidarity In Transition, Paul Linden-Retek

Journal Articles

This article seeks to confront the contemporary condition in which cosmopolitan law – meant to resonate as something citizens across borders author and live together – instead is increasingly a source of detachment, confusion, and alienation. Taking the European Union’s twin crises of democratic legitimacy and social solidarity as its starting point, the article offers a critique of existing approaches to supranational constitutionalism that are insufficiently responsive to this disenchantment. The article’s purpose, in turn, is to present perspectives from philosophy and legal theory that might promisingly recast, in this new cosmopolitan frame, our thinking about law as a mode …

The Constitutionality And Legality Of Internet Voting Post-Shelby County, Logan T. Mohs

Duke Law & Technology Review

The technological and electoral landscapes have changed drastically since the turn of the century. While it once might have made sense to view voting online as unconstitutional, as opposed to merely impractical, the expanded range of Internet access for minority communities has made that argument tenuous at best. While there still may exist practical and political reasons to avoid Internet voting, the Constitution no longer stands as an effective wall against the practice. Furthermore, the primary statutory obstacle to the implementation of Internet voting on a local level, the Voting Rights Act, has been greatly weakened by the recent Supreme …

July 4, 2015: Can God Do A New Thing?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Can God Do a New Thing?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Dangerous Right To Food Choice, Samuel R. Wiseman

Seattle University Law Review

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right. The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

Ag Gag Past, Present, And Future, Justin F. Marceau

Seattle University Law Review

While the animal rights and food justice movements are relatively young, their political unpopularity has generated a steady onslaught of legislation designed to curtail their effectiveness. At each stage of their nascent development, these movements have confronted a new wave of criminal or civil sanctions carefully tailored to combat the previous successes the movements had achieved.

Intestacy Concerns For Same-Sex Couples: How Variations In State Law And Policy Affect Testamentary Wishes, Megan Moser

Seattle University Law Review

As the number of same-sex couples increases in the United States, concerns regarding the evolution of federal and state law, with respect to rights for same-sex couples, also continue to rise. As marriage is not always available to same-sex couples, they often face very different legal issues than couples in a traditional marriage. Because marriage is typically not a legal cause of action, the question of a marriage’s validity often arises incidentally to another legal question, such as the disposition of a decedent’s estate.

Public School Funding And Mccleary V. State Of Washington—A Violation Of The Separation Of Powers Doctrine Or A Legitimate Exercise Of Judicial Autonomy?, Jessica R. Burns

Seattle University Law Review

Public school funding has been contentiously litigated throughout the United States, and the Washington Supreme Court has addressed the inadequacy of public school funding in two pivotal cases: Seattle School District No. 1 v. State and McCleary v. State. In both decisions, the Washington Supreme Court held that the State failed to provide an adequate basic education for its public school students; however, in its attempt to remedy the situation, the court took drastically different approaches.

Opening The Barnyard Door: Transparency And The Resurgence Of Ag-Gag & Veggie Libel Laws, Nicole E. Negowetti

Seattle University Law Review

Over the past several decades, as the agricultural system became increasingly industrialized and the steps from farm to plate multiplied, consumers became farther removed from the sources of their food. Until recently, most consumers in America were content to eat their processed, cheap, and filling foods without giving a second thought to how these foods were produced. The tides are changing. Increasingly, consumers are calling for more transparency in the food system. Repulsed by images of animal cruelty and shocked by unsavory food production practices, consumers want the food industry’s veil lifted and are demanding changes in food production. The …

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.

Ratios, (Ir)Rationality & Civil Rights Punitive Awards, Caprice L. Roberts

Akron Law Review

This article will focus on the effect of the Court’s tightening of the ratio prong on federal civil rights cases. In particular, it addresses whether federal appellate courts feel constrained by State Farm’s stated preference for single-digit ratios, or instead, jettison the ratio strictures in favor of other prongs...The problems are two-fold in civil rights line of cases: (1) some federal circuit courts bar punitive damages if there are no compensatory damages; and (2) courts reviewing a punitive award where compensatory damages exist may feel compelled to apply rigidly a single-digit ratio to comport with State Farm. Barring or severely …

The Constitutional Jurisprudence Of Sandra Day O'Conor: A Refusal To "Foreclose The Unanticipated", Wilson Ray Huhn

Akron Law Review

Part I of this essay covers an early period on the Court when Justice O’Connor seemed principally concerned with questions of jurisdiction and appellate process, during which she was frequently inclined to dispose of cases on technical or procedural grounds. Part II discusses Justice O’Connor’s attention to detail and consideration of factual context and her tendency to adjust the traditional standards of review in light of the circumstances of the case. Part III outlines Justice O’Connor’s respect for precedent and commitment to the principle of stare decisis particularly as it relates to her refusal to overrule Roe v. Wade. Part …

Obama, The Fourteenth Amendment, And The Drug War, Martin D. Carcieri

Akron Law Review

This article is written to help clarify the full range of understanding Obama would bring to a second term.

Specifically, I defend two related, contested theses. My core thesis, to which this article is primarily devoted, is a jurisprudential claim: contrary to state and lower federal court rulings, marijuana prohibition is subject to strict judicial scrutiny under leading relevant U.S. Supreme Court jurisprudence. I support this thesis primarily by showing that under the Fourteenth Amendment, bodily autonomy—i.e., the control over the borders and contents of one’s body burdened by laws like marijuana prohibition—is a fundamental right, and that the Court …

Gonzales V. Raich: How To Fix A Mess Of "Economic" Proportions, Gregory W. Watts

Akron Law Review

The Note examines the history, evolution, elements, and application of the Commerce Clause doctrine. Part II, Sections A through C, concentrate on the history of the Supreme Court’s interpretation of the Commerce Clause, focusing extensively on Wickard v. Filburn, which the majority in Raich held controlling, and United States v. Lopez and United States v. Morrison, which the dissent would have held as controlling. Part II, Sections D and E, provide an overview of the Controlled Substances Act, whose constitutionality was challenged as applied in Gonzales v. Raich, and the Compassionate Use Act of California, which led to the conflict …

Off To Elba! The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

Akron Law Review

This article will look at why sex offenders are treated differently than other criminal offenders. Sex offenders are subject to sanctions and prohibitions above and beyond what other criminal offenders must face. Next, the article will look at some of the residence and employment restrictions placed on sex offenders to determine if they are rationally related to any legitimate government interest without overbearing the sex offender’s constitutional rights. Finally, the article will offer an alternate means of sex offense prevention that encourages sex offender assimilation back into society instead of further exclusion. This article will focus on those individuals who …

Creating The Public Forum, Samantha Barbas

Akron Law Review

This article describes the development of the public forum doctrine in the context of a larger story about the nation’s efforts in this period to come to terms with its first modern crisis of communication...The public forum is both a site for public debate and a means of communication for the less privileged. In the 1930s and 1940s, intellectuals and activists sought to enlist the state in the creation of “public forums” on the radio, in print journalism, and in public space. This article examines this public forum movement and its enduring impact on the free speech doctrine and social …

Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Akron Law Review

The purpose of this Article is to expand the scope of the discussion from one of morality to include a sociological approach, called Diffusion Theory...Section II of this Article explains Diffusion Theory. Section III explores the background of DOMA and the factual background in which DOMA is being challenged by the states and private citizens. Section IV discusses the fundamentals behind the Florida adoption ban and how the change in the message by the challengers has proven effective. The final part, Section V, analyzes whether the approach should center on the inevitability of the change, as reflected in the Justice …

Interstate Agreement For Electoral Reform, Adam Schleifer

Akron Law Review

This Article will consider how an interstate agreement pursuant to Article I, Section 10 of the U.S. Constitution could provide a subconstitutional legal alternative to the much-debated and oft-maligned political mechanics of the Electoral College system. The current gloss on the Compacts Clause and the Supreme Court jurisprudence relating to interstate agreements may make it possible for a number of states to come together to obviate the Electoral College without resort to constitutional amendment. More modestly, investigating how this might be so provides an opportunity for applied analysis of the underscrutinized field of interstate agreements, which may prove useful as …

Thomas Jefferson And The Establishment Clause, Mark J. Chadsey

Akron Law Review

The purpose of this paper is to ask whether the historical record actually supports either of these assumptions. A note about my mode of analysis is necessary at this juncture. When inquiring about Jefferson’s influence on the Establishment Clause, it is important to focus on the entire process by which it was adopted rather than its mere introduction by Madison in the House of Representatives. Its adoption, after all, required the assent of two-thirds of both chambers of Congress, three-fourths of the state legislatures, and the support of a majority of the American public. Without the requisite support of all …

Reversing Time's Arrow: Law's Reordering Of Chronology, Causality, And History, Bruce G. Peabody

Akron Law Review

But this Article urges us to use the President’s unintended comments as a prompt for reconsidering how we ordinarily talk about and conceive time and causality ―especially in thinking about law. Through a series of brief case studies culled from politics, culture, and law, this piece begins mapping the frequency, range, and significance of circumstances in which we can claim that the hands of the present grasp and transform the past...Among other benefits, greater awareness of this underappreciated aspect of American legalism can assist scholars and citizens in shedding new light on enduring and important debates involving such areas as …

Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Akron Law Review

Sections two and three of the Fourteenth Amendment, being more political than legal enactments, have had essentially no judicial or legal development. Yet even the first sentence of section one and the ensuing Privileges or Immunities Clause have had relatively little play in the courts. With the single exception of the 1999 case of Saenz v. Roe, 6 the citizenship language of the Fourteenth Amendment has practically no legal significance.

Still, these approaches to equal or constitutional citizenship represent a starting point, not a conclusion. Taking up the invitations of these scholars, my project is to delve more deeply into …

Standing In The Mud: Hein V.Freedom From Religion Foundation, Inc.

Akron Law Review

In 1968, in Flast v. Cohen, the Supreme Court first set forth the requirements that a plaintiff must satisfy to have standing to challenge a government action in federal court solely based on his or her status as a taxpayer. The subsequent history of taxpayer standing is littered with precedents supported by unclear reasoning. Hein v. Freedom from Religion Foundation, Inc. represents the Supreme Court’s latest effort to address the limits of taxpayer standing in an Establishment Clause challenge. Unfortunately, the Court in Hein maintained its tradition of providing perplexing decisions in taxpayer standing cases. In Hein, a plurality of …

"Horror Of A Woman": Myra Bradwell, The 14th Amendment, And The Gendered Origins Of Sociological Jurisprudence, Gwen Hoerr Jordan

Akron Law Review

On June 14, 1873, Myra Bradwell reprinted a short article from the St. Louis Republican in the Chicago Legal News announcing the U.S. Supreme Court’s decision in her case.

This short article reveals an important insight that challenges some contemporary interpretations of Bradwell v. Illinois. First, it points out what we know, but sometimes overlook, that the Supreme Court holding in Bradwell did not prevent women from becoming lawyers or practicing law.6 More importantly, however, it suggests that Justice Bradley’s oftcited concurrence – where he reveals his horror of a woman, writing that “[t]he harmony, not to say identity, of …

The Use Of The Fourteenth Amendment By Salmon P. Chase In The Trial Of Jefferson Davis, C. Ellen Connally

Akron Law Review

The resulting decision in The Slaughterhouse Cases is one that is still debated and stands as a primary example of an unintended consequence of a constitutional amendment. Although historians and legal scholars have considered a number of the unintended consequences of the Fourteenth Amendment, one result, unforeseen by its proponents, has been totally overlooked... In the legal proceedings that came to be known as United States v. Jefferson Davis, a legal determination was required to determine whether or not Section 3 imposed a simple disqualification or an actual punishment...Could those who pushed for the adoption of the Fourteenth Amendment, those …

Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen

Akron Law Review

This Article sets forth the Slaughter-House Cases’ support for civil rights. Justice Miller used federalism in order to protect Reconstruction legislatures where significant numbers of African-Americans participated fully for the first time. His recital of the history and purpose of the Civil War Amendments centered on the Amendments’ design to protect African-Americans, and suggested sweeping federal power to accomplish that end. Gutting the Privileges and Immunities Clause compelled the Court to read the Equal Protection Clause broadly, and was indirectly responsible for the reapportionment decisions of the Warren Court. The Slaughter-House Court’s structural analysis and its view of federal protective …

July 1, 2015: None, Bruce Ledewitz

Hallowed Secularism

Blog post, “None“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Response To Heather Gerken's Federalism And Nationalism: Time For A Détente?, Erin Ryan

Scholarly Publications

No abstract provided.

Enhancing The Parliament Capacity To Hold Government Accountable In Kurdistan Region, Zardasht Khalid Mohammed

Maurer Theses and Dissertations

The current structures and draft structures grant the party leaders and the Executive undue power over the Parliament in two ways. First, by virtue of constitutional design, the Executive and the party leader’s hegemony reduce the Parliament’s capacity to act as a check on the Executive. Second, there are contextual factors correlated with political will in using available accountability mechanisms which locate beyond the design factors and they have nexus with effectiveness of the Parliament. In the other words, the contextual factor such as electoral system, party discipline, and party formations impact on the will of the parliament in holding …

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Florida State University Law Review

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take …

Forced Decryption As Equilibrium—Why It’S Constitutional And How Riley Matters, Dan Terzian

Northwestern University Law Review

This Essay considers whether the government can force a person to decrypt his computer. The only courts to consider the issue limited their analyses to rote application of predigital doctrine and dicta. This is a mistake; courts should instead aim to maintain the ex ante equilibrium of privacy and government power. This approach—seeking equilibrium—was just endorsed by the Supreme Court in Riley v. California, a recent Fourth Amendment case. Yet Riley’s rationale also extends to the Fifth Amendment’s Self-Incrimination Clause, and maintaining equilibrium there requires permitting forced decryption. Because current doctrine can be interpreted as allowing forced decryption, …