Constitutional Law Commons^™

Exxon Shipping Co. V. Baker: Why The Supreme Court Missed The Boat On Punitive Damages, Maria C. Klutinoty

Akron Law Review

This Note will touch upon the numerous constitutional challenges the doctrine of punitive damages has faced, and will discuss noteworthy Supreme Court cases preceding Exxon Shipping Co. v. Baker at length, including BMW of North America, Inc. v. Gore, 5 as well as State Farm Mutual Automobile Insurance Co. v. Campbell. 6 This Note argues against the imposition of a strict one-to-one maximum ratio of punitiveto-compensatory damages. In light of the varying application of Exxon outside of the maritime context, such an imposition defeats the purpose of punitive damages by diluting their potential for deterrence, and it needlessly complicates the …

The Timing Of Facial Challenges, Timothy Sandefur

Akron Law Review

My purpose here is to separate out the different conceptual categories whose overlap has led to these mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or ripeness of a cause of action challenging the constitutionality of a law. The accrual date of facial and as-applied challenges is identical (with some exceptions, as we shall see), and mere enactment is rarely, if ever, the ripening event or the moment of accrual for a case in which a party mounts a facial challenge to a law. The distinction between facial and as-applied challenges is, so to speak, …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Akron Law Review

One is forced to wonder whether any laws exist to protect minors whose personal lives are laid bare as their own parents thrust them into the paparazzi’s spotlight. This article addresses this question, considering the best legal regime for regulating employment of children in reality programming, and suggesting an alternative to the status quo. To that end, Part II begins by identifying the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children who participate and to society in general. Part III surveys the current legal landscape, addressing first the federal law …

The Challenge And Dilemma Of Charting A Course To Constitutionally Protect The Severely Mentally Ill Capital Defendant From The Death Penalty, Lyn Entzeroth

Akron Law Review

This article examines these issues in the context of an important and emerging constitutional challenge to the death penalty: whether the death penalty can be imposed on capital defendants who suffer from severe mental illness at the time of the commission of their crimes. The American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance for the Mentally Ill all endorse a death penalty exemption for the severely mentally ill. Recent law review articles suggest that such an exemption may even be compelled by the Supreme Court’s decisions in Roper v. Simmons and Atkins v. …

Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo

Akron Law Review

Part I of this Note explores the contours of the complicated history of the Establishment Clause by examining the creation of the Lemon test and the inconsistencies of the test’s subsequent application. The Note then explores Justice O’Connor’s endorsement modification to that test. Part I concludes with a discussion of the Supreme Court’s move toward embracing a principle formal neutrality. Part II provides a factual history of the transfer at issue and a detailed summary of the District Court’s opinion in Wirtz. Part III of the Note explains that the Constitution does not preclude economic development transfers to religious institutions. …

Summary Of Nevada Department Of Transportation V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 41 (June 25, 2015), Jessica Gandy

Nevada Supreme Court Summaries

The Court determined, pursuant to the U.S. Constitution, as well as the Nevada Constitution, there was no taking of Ad America’s property because the Nevada Department of Transportation publicly disclosed its plan to comply with federal law, the City independently acquired property that was part of Project Neon, and the City rendered land use application decisions conditioned on coordination with the Nevada Department of Transportation for purposes of Project Neon.

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia's Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Akron Law Review

James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Akron Law Review

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution, Stephen C. Neff

Akron Law Review

This discussion will briefly outline the legal arguments in favour of the secessionist position. The first section will survey four arguments that could, in theory, have been employed but which, in practice, were used either not at all or only marginally. The second section will survey, in greater detail, the principal argument which was advanced in 1860-61: that secession was a lawful remedy available to the Southern states in the face of material breaches of the Constitutional compact of 1787 by the free states. It will be observed that, in this argument, general considerations of natural law and of the …

James Madison And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson

Akron Law Review

The last of the limited-subject interstate gatherings is today the most famous. The Annapolis Convention of 1786 was to focus on “the trade and Commerce of the United States.” Its limited scope induced Madison, who served as a delegate, explicitly to distinguish it from a plenipotentiary convention. For the most part, all of these conventions—today we might call them “task forces”—remained within the scope of their calls. If there was an exception, it was the abortive assembly at Annapolis, and that exception was solely to express the “wish” and “opinion” that another convention be held to consider defects in the …

Still Too Close To Call? Rethinking Stampp's "The Concept Of A Perpetual Union", Daniel W. Hamilton

Akron Law Review

In a classic article in the Journal of American History, which was based on his presidential address to the Organization of American Historians in 1978, the great Civil War historian Kenneth Stampp made the claim that the arguments in favor of the constitutionality of secession made by the Southern states were as strong, if not stronger than the constitutional arguments made, then and now, in opposition to secession. Stampp is to my mind the greatest Civil War historian of the 20th century and his views on secession remain required reading and are cited routinely today. This is not to say …

Finding Nino: Justice Scalia's Confrontation Clause Legacy From Its (Glorious) Beginning To (Bitter) End, Joëlle Anne Moreno Professor

Akron Law Review

Until very recently, Justice Scalia has steered the Court’s modern confrontation jurisprudence. However, as discussed below, his leadership is increasingly threatened by deep divisions on questions of historical accuracy, constitutional interpretation, and the practical realities of twenty-first century criminal prosecutions.

Babies Behind Bars: An Evaluation Of Prison Nurseries In American Female Prisons And Their Potential Constitutional Challenges, Seham Elmalak

Pace Law Review

This note opens the prison doors and delves into the United States female prison system, primarily focusing on the positive and negative impact of nursery programs on mothers and children, along with potential constitutional claims that can be brought against these programs. Part I provides a general background about the American prison system, and briefly touches on the constitutional standards of prisoners’ rights. It also discusses the history and development of female prisons and illustrates the rapid increase of female incarceration. Part II focuses on the prevalence of mothers within the female population in prisons. Part III introduces prison nursery …

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …

June 20, 2015: The Democrats Are Wrong On Trade, Bruce Ledewitz

Hallowed Secularism

Blog post, “ The Democrats Are Wrong on Trade“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 18, 2015: The End Of Rawls, Bruce Ledewitz

Hallowed Secularism

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

June 16, 2015: Secularization In Greece And Turkey, Bruce Ledewitz

Hallowed Secularism

Blog post, “Secularization in Greece and Turkey“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Newsroom: Field '97 On Open Records, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

House Of Cards: How Rediscovering Republicanism Brings It Crashing Down, Jonathan E. Maddison

Catholic University Law Review

Using Frank Underwood’s maniacal political journey in the Netflix series House of Cards as an example of what is wrong with American politics, this article argues that the Supreme Court’s misapplication of First Amendment principles in Citizens United and other key campaign finance cases plays a large and problematic role. Providing an extensive historical overview of republicanism and First Amendment jurisprudence, this article suggests that a return to republican ideals, while not perfect, is both the solution and proper tool of analysis to be used by the Supreme Court for campaign finance cases and beyond.

Inmates’ E-Mails With Their Attorneys: Off-Limits For The Government?, Amelia H. Barry

Catholic University Law Review

The attorney-client privilege is vital to inmates who otherwise have limited opportunities for private communications in prison. Traditionally, inmates have only been able to communicate with their attorneys via in-person visits, phone calls, and mailed letters. As federal inmates have begun using e-mail to converse with their attorneys, courts have had to determine if these conversations are protected by the attorney-client privilege. This Comment discusses courts’ approaches to this question, many of which have found that inmates’ e-mail communications with their attorneys are not privileged because by using the federal prison e-mail system, which warns users that conversations can be …

Reply Brief For Plaintiff-Appellant, Alexander A. Reinert

Amicus Briefs

Plaintiff-Appellant Daniel McGowan submits this reply in response to the Brief for Defendants-Appellees United States of America and Tracy Rivers (“Defs.’ Br.”). Defendants concede that Plaintiff was placed in solitary confinement without any statutory or regulatory authorization and solely because he authored a blog post, speech protected by the First Amendment. Nonetheless, Defendants maintain that there is no remedy for this violation of Mr. McGowan’s constitutional and common law rights. None of the reasons offered by Defendants for their position is compelling or supported by relevant law. When one steps back and considers Defendants’ brief as a whole, it is …

June 1, 2015: How To Be Spiritual But Not Religious, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to be Spiritual but not Religious“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Niccolò Machiavelli: Father Of Modern Constitutionalism, Mortimer N.S. Sellers

All Faculty Scholarship

Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good; second, that government should do so through known and stable laws; …

Brief Of Constitutional Law Scholars And Practitioners As Amici Curiae In Support Of Plaintiffs-Appellants And Supporting Reversal,Georges V. United Nations, Docket No. 15-00455 (Second Circuit 2015), Steven D. Schwinn

Court Documents and Proposed Legislation

Prospective amici curiae are scholars and practitioners of United States Constitutional law. Together, Amici have substantial experience researching, publishing, teaching, and litigating in the field of Constitutional law, particularly on the constitutional right of access to the courts. Amici have a strong interest in ensuring that immunity does not infringe on individual constitutional rights, specifically the fundamental right of access to the courts. They submit their brief in support of Plaintiffs-Appellants’ position that immunity should not be accorded to the Defendants-Appellees in this case, where doing so would unconstitutionally impinge on Plaintiffs-Appellants’ fundamental right of access to the courts.

Colonialism And Constitutional Memory, Aziz Rana

Cornell Law Faculty Publications

The United States shares a number of basic traits with various British settler societies in the nonwhite world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences?

This Article offers an initial response, arguing that a significant reason is the symbolic power of …

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …

Adequacy Of Notice Under Cafra: Resolving Constitutional Due Process Challenges To Administrative Forfeitures, Rebecca Hausner

Cardozo Law Review

No abstract provided.

Bills, Bills, Bills: The Effect Of A Rejected Settlement On Attorney's Fees Under The Civil Rights Attorney's Fees Award Act Of 1976, Melissa Ibrahim

Cardozo Law Review

No abstract provided.

May 30, 2015: Krugman On The Economics Of The Average American, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Krugman on the Economics of the Average American“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The President's Wartime Detention Authority : What History Teaches Us, Anirudh Sivaram

Harvey M. Applebaum ’59 Award

This thesis examines the extent of the President’s wartime detention authority over citizens (in particular, detention authority pursuant to Article II of the U.S. Constitution) through a legal-historical lens. Some Presidents (Abraham Lincoln, Franklin Roosevelt, George W. Bush) have historically relied on Article II authority for detention, while others (Ulysses Grant, Barack Obama) have disclaimed the notion that such authority exists. Clarifying the scope and source of the Presidential detention authority over citizens bears both theoretical and real-world relevance. Theoretically, it lies at the confluence of two central American constitutional traditions – the separation of powers, and the protection of …