Constitutional Law Commons^™

Filming The Police: An Interference Or A Public Service, Aracely Rodman

St. Mary's Law Journal

Abstract forthcoming.

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno

Faculty Scholarship

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …

Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West

Faculty Scholarship

No abstract provided.

A Theory Of Copyright Authorship, Christopher Buccafusco

Faculty Scholarship

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

A Hurdle Too High: The Unconstitutionality Of Mandatory Ultrasounds Under Casey's Undue Burden Standard, Katarzyna Kordas

Cardozo Journal of Equal Rights & Social Justice

The article argues that mandatory ultrasound laws impose an undue burden on women seeking abortions, violating the constitutional standard established in Planned Parenthood v. Casey. These laws, often enacted to dissuade women from proceeding with abortions, are deemed medically unnecessary and unconstitutional as they obstruct women's reproductive rights.

Thou Shall Not Adopt: Sexual Orientation Discrimination In The Adoption Process, Peter Gallucci

Cardozo Journal of Equal Rights & Social Justice

The note addresses the issue of sexual orientation discrimination in the adoption process, highlighting how religious-based adoption agencies often deny services to LGBTQ+ couples, despite the growing need for foster care placements. It critiques current laws that permit such discrimination and proposes an enhanced version of the Every Child Deserves a Family Act to ensure equal adoption rights while mitigating the impact on states and foster children.

"A Trial Of Strength In Scenes Of Violence": Building A Case For The Prenatal Rights Of Willing Fathers Towards Custody, Anton Sorkin

Cardozo Journal of Equal Rights & Social Justice

In the 1920s, family law jurisprudence saw the development of a fundamental right to direct the upbringing and education of children by parents. However, in the aftermath of Roe v. Wade, the Supreme Court began a trajectory that culminated in what would amount to a total deprivation of a father's prenatal rights despite an absence of judicial review of these matters. This evolution has created a grave injustice and a violation of the rule of law, in addition to facilitating the breakdown offamily oneness in our culture. While proponents like Lynne Marie Kohm, Michael J Higdon, Mary Totz, and Matthew …

Transforming The “Thurmond Rule” In 2016, Carl W. Tobias

Law Faculty Publications

This piece first analyzes the Rule’s history. Part II explains the convention and its deleterious consequences. Finding that each party reinterprets the notion to stymie appointments—which perverts the selection process, deprives courts of judicial resources for delivering justice, and intensifies the “confirmation wars”—the final Part proffers solutions. Because the Rule has multiple detrimental effects, it warrants abolition.

Persistent Threats To Commercial Speech, Jonathan H. Adler

Faculty Publications

The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This article briefly examines two: the use of commercial speech restrictions as a form of rent-seeking, and compelled commercial speech. Regulation of commercial speech is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have also been unduly deferential to claims of a consumer “right to know” as a basis for mandated labeling and disclosure. Greater and …

Protecting The Watchdog: Using The Freedom Of Information Act To Preference The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on …

The Original Fourth Amendment, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business, against the owner’s wishes, to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon.12 Outside of that narrow circumstance, the government was prohibited from search and seizure absent …

Singled Out, Michael Pappas

Publications

David has been "singled out." He is the only one in his neighborhood legally prohibited from building a house. In a town full of residences, his lot alone must remain vacant. This is unequal, but is it unconstitutional?

Courts have continually grappled with this sort of question, vigilantly defending against unfair and unjust singling out. So important is this concern that the Supreme Court has emphasized it as the heart of the Fifth Amendment takings jurisprudence, and an entire Equal Protection doctrine has emerged around it.

However, courts and scholars have yet to critically examine the concept of singling-out, and …

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Abby K. Wood, Douglas M. Spencer

Publications

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First …

Decriminalizing Polygamy, Casey E. Faucon

Utah Law Review

Polygamous families are our national outlaws. Despite the expansion of sexual rights and marriage equality in the U.S., polygamy remains a crime. Challenging that stigma is the Brown family, who star in the reality TV show “Sister Wives” and who practice polygamous marriageas a tenet of their religion. The Browns filed suit against multiple Utah state actors in federal district court, challenging Utah’s polygamy statute as unconstitutional in violation of their Free Exercise of Religion, substantive Due Process, and Equal Protection rights. The district court agreed and decriminalized informal polygamy in Utah. On appeal, the Tenth Circuit reversed the district …

Evading The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Utah Law Review

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims. In this Article, I have argued that cyberbullying is so harmful, in and of itself, that it should be afforded diminished First Amendment protections. I have also advocated for a narrow definition of cyberbullying that incorporates the three elements of the prevailing social scientists’ definition of “bullying” as it relates to cyberbullying: (1) intent to harm; (2) repetition; and (3) power imbalance between cyberbully and victim.

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

Publications

Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …

The Dynamics Of Excessive Force, Daria Roithmayr

Publications

Existing scholarship suggests that police use of excessive force will be greatest in departments with "bad apple" officers or bad top-down incentive structures. This paper proposes an alternative theoretical account to argue that patterns of excessive force dynamically emerge from local interactions among individuals that aggregate to form more global patterns of escalation, contagion, and decay. I focus on two dynamic interactions in particular. First, I argue that excessive force spreads and escalates by way of a self-reinforcing arms race between civilians and officers that intensifies the use of excessive force over time. As officers use excessive force, civilians in …

Reconsidering The Remedy Of Gender Quotas, Tracy Thomas

Con Law Center Articles and Publications

When newly-elected Canadian Prime Minister Justin Trudeau was asked by surprised reporters why he appointed women as fifty percent of his new cabinet, he responded simply, “Because it’s 2015.” Just because. Because it’s time. In fact, he suggested, it is long past time for having to justify including women as one-half of the power structure when women constitute one-half of the population. And it’s time for meaningful change in shared governance by something as pragmatically simple as selecting fifteen women and fifteen men for appointments.

Similarly, it is long past time for justifying the need to reform American institutions that …

The Origins Of Constitutional Gender Equality In The Nineteenth-Century Work Of Elizabeth Cady Stanton, Tracy Thomas

Con Law Center Articles and Publications

This introduction to the symposium previews the colloquium held at the Center for Constitutional Law at Akron on the intellectual work of pioneering feminist Elizabeth Cady Stanton. It highlights the talks from scholars in law, history, and women’s studies, published in this symposium issue, that explore Stanton’s philosophical and political work for gender equality in the political, domestic, and religious spheres.

The "Radical Conscience" Of Nineteenth-Century Feminism, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Articles

The Second Circuit is renowned for its landmark rulings in fields such as white collar crime and securities law — bread and butter issues growing out of Wall Street’s preeminence in the financial landscape of the nation. At the same time, the Second Circuit has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of …

Constitutional Amendment, Madhav Khosla

Faculty Scholarship

This chapter examines the formal method for constitutional amendment provided for in Article 368 of the Indian Constitution. It first reviews the early cases that gave rise to the Basic Structure doctrine, which placed substantive restrictions upon the power of amendment, before exploring subsequent developments and the application of the doctrine. It considers how Indian courts have addressed the idea of an unconstitutional constitutional amendment, with particular emphasis on the architectural framework that the courts have envisioned the Constitution to have. It explains how the Basic Structure doctrine has been used to understand the principles on which constitutionalism must depend.

Constitutionalizing Systemic Administration, Gillian E. Metzger

Faculty Scholarship

Will the national administrative state as we know it survive? That question has risen to the fore with the advent of the Trump presidency. The President’s chief strategist has proclaimed “deconstructing the administrative state” to be one of the main pillars of the Trump Administration. Philip Rucker & Robert Costa, Bannon Vows a Daily Fight for ‘Deconstruction of the Administrative State,’ WASH. POST (Feb. 23, 2017). Early Trump actions have been notably anti-regulatory, including requirements that agencies repeal two regulations for each new regulation they propose, keep additional regulatory costs at zero, and plan for reorganization.

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

The Oira Transparency Problem, Peter L. Strauss

Faculty Scholarship

This article critiques the opacity of the Office of Information and Regulatory Affairs (OIRA), arguing that its centralized review process allows former officials to exploit loopholes in post-employment ethics statutes and asserts that this dynamic undermines regulatory integrity and democratic accountability by allowing privileged access to influence high-stakes federal rulemakings.